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Congratulations to all of you!  History has been made, and it is time for everyone to rejoice in this Supreme Court decision.  Now all 50 states allow same-sex marriage.  I can’t tell you how happy I am for all of you. Thank you to those of you who have let me help you in the most personal aspects of your lives. I feel honored to have been able to get to know and advise you.  I have made many new friends and our friendships will continue.

My firm and I want to thank you all for trusting us to help with these matters closest to your heart, and we are still available to help you with your legal issues.

I think it is time to close down the blog for “nontraditional couples & families” as you are not “nontraditional” any more!

Keep in touch!

My best,

Maureen B. Cohon

Buchanan Ingersoll & Rooney PC

412 562 1835

Designating Your Same-Sex Spouse as the Sole Beneficiary in Your Will

 

By David K. Goldfarb (Summer Associate)

Question: If your will designates your same-sex spouse as the sole beneficiary, will your relatives have a valid (and potentially successful) claim against your estate?

Estate planning can be a very stressful time for all married couples, especially when children and other relatives need to be considered.  However, under normal circumstances, one need not be overly concerned with the validity of his will and the possibility of relatives bringing claims against a surviving spouse that has been designated as the sole beneficiary under that will. It is typically very difficult to challenge a will. Approximately 99% of wills are enforced without any issues. Courts interpret wills as the voice of the testator (the person who wrote the will). Since that person is deceased and no longer able to express his wishes, courts are extremely hesitant to alter the terms of the will.

As a general rule, a party must have an interest in order to challenge a will, and that interest must be substantial, direct, and immediate. It is very likely that a court would conclude that close relatives, like children, have a substantial, direct, and immediate interest in your will. Thus, your relatives would likely be able to bring a claim against your estate. However, such a claim is unlikely to prevail.

As an initial matter, Pennsylvania law expressly allows you to disinherit (deprive someone of inheritance) every individual other than your spouse.  Furthermore, your relatives, or any other challenger, would have a very limited number of grounds for bringing a claim against your same-sex spouse. Most grounds address the procedural process for the creation of a will and are easily addressed by retaining an attorney to assist in your estate planning. The two substantive grounds are that the individual lacked the mental capacity necessary for creating a valid will and that the will was procured by fraud, forgery, or undue influence.

In order to challenge a will based on mental capacity, the challenger must prove that the testator did not understand the consequences of making the will at the time of the will’s creation. Adults are presumed to have the necessary mental capacity required for the creation of a will, thus this argument is usually limited to the context of an individual diagnosed with dementia who revises their will towards the end of their life.

In order to challenge a will based on fraud, forgery or undue influence, the challenger essentially must prove that the will was not created by the deceased or that the deceased was forced via threats to create the will. No matter the situation, it would be wise to have several witnesses, including an attorney, present during the creation of your will. Most states require a typed hard copy of the will signed by the testator in the presence of at least two adult witnesses who are not named as heirs in the will.

It is advisable to consult with a Trusts & Estates attorney as part of your estate planning to ensure that no potential claimant could prevail against your same-sex spouse in challenging the will.

 

Wisconsin Court Held that Same Sex Couple is Permitted to File Joint Bankruptcy Petition

In In re Matson, 2014 BL 118411, Bankr. E.D. Wis., No. 2:13-bk-35362, 4/29/14, the U.S. Bankruptcy Court for the Eastern District of Wisconsin held that a same sex couple married in Iowa are spouses for purposes of the Bankruptcy Code and are permitted to file a joint bankruptcy petition even though Wisconsin would not recognize the marriage.

Click this link to read: In re Matson.

Pittsburgh Pride Event – Legal and Financial Planning for Gay and Lesbian Couples

It is that time of the year when we are giving our talk during Pittsburgh Pride Week.  This year’s talk will be a little different.  We will be talking about marriage, adoption, tax issues, updates on what has happened this year regarding rights post DOMA as well as financial planning.  Hope that you can attend!

PITTSBURGH PRIDE EVENT

Legal and Financial Planning for Gay and Lesbian Couples

 Tuesday, June 10, 2014

6:00 – 7:30 p.m.

Reception and Discussion by below-named speakers

Buchanan Ingersoll & Rooney PC

Maureen B. Cohon, Esquire

Kate R. Paine, Esquire

Lauren Sweeney

          Nontraditional Couples & Families Practice Group

Fifth Third Bank

Robert Lepre, Senior Vice President

         Private Bank Manager – Life Partner Services

  Please RSVP by Thursday, June 5, 2014, to

Maureen B. Cohon – 412-562-1835 or maureen.cohon@bipc.com

Space limits us to 50 attendees

Program will be held at:

WQED Multimedia

4802 Fifth Avenue
PittsburghPA15213

Parking Available

Assisted Reproductive Technology: An Overview of Rights and Responsibilities

 

by  Tiffany Jenca

One of the biggest decisions every couple faces is whether, and when, to have children. Significantly fewer couples must decide how to have children. For most same-sex couples, though, the “if” cannot be separated from the “how.”

Today, the “how” is typically accomplished through methods known as Assisted Reproductive Technology, or “ART.” This post provides a general overview of two common forms of ART: surrogacy and sperm/egg donation.

Surrogacy

A “surrogate” is a woman who carries to term and gives birth to a child who will legally be the child of another: the “intended parent.” A “traditional” surrogate is a woman that carries to term for the intended parent a child comprised of the surrogate’s own egg and a donated sperm. A “gestational” surrogate is a woman who carries to term for the intended parent a child with whom the surrogate has no biological relation, because her egg was not used in the embryo.

In determining which type of surrogacy is right for you, it is important to understand that, in the surrogacy context, a biological relationship to the child is often legally favored in Pennsylvania. Because of the potential for confusion and resulting legal battles if a traditional surrogate later decides to seek custody of the child to whom she is biologically related, most intended parents choose to use their own sperm/egg and a gestational surrogate. Moreover, Pennsylvania courts strictly limit the rights of a gestational surrogate and acknowledge that “no law in this Commonwealth” provides a gestational surrogate standing to seek custody of a resulting child as against a biological parent.

Egg and Sperm Donation

Unlike with surrogacy, in the sperm/egg donation context, a mere biological relation to the child is typically insufficient, on its own, to establish parental rights. So, although a sperm/egg donor is biologically related to the resulting child, the donor’s legal rights and obligations to the child often turn on the donor’s social, emotional or financial involvement in the child’s life.

For example, Pennsylvania courts have held that anonymous sperm and egg donors enjoy no rights with respect to the resulting child. The donor and the intended parent enter into separate contracts with a third party agency, which contracts effectively terminate any potential rights between donor and child.

The law is not as cut-and-dry, however, when an intended parent opts to use the sperm or egg of a “known donor,” such as a friend or former love interest. Pennsylvania cases illustrate the broad spectrum of legal rights and responsibilities under Pennsylvania law that may (or may not) attach to a known donor.

In one case, a man agreed to donate sperm for his former lover’s use in an ART procedure. The parties orally agreed that the man would have neither parental rights over the children nor a financial obligation to support them. The couple concealed the donor’s identity as the children’s biological father, and he was generally uninvolved in their lives. Nevertheless, the mother decided to seek child support payments from him. Ultimately, the court refused her claim, acknowledging that parental obligations go hand-in-hand with parental rights. Because the man had—by agreement, and, in practice—not been involved in the children’s lives, he could not be required to pay child support.

Conversely, where the known donor visits his biological children’s home and becomes an “integral part” of the children’s life, Pennsylvania courts do not hesitate to find that the donor is also obligated to financially support his children, and may actually have parental rights to the children.

In sum, the key legal principles that those considering using Assisted Reproductive Technology should keep in mind, are:

  1. In the surrogacy context, biological parents are legally favored in Pennsylvania. To prevent future legal disputes over who is the child’s parent, the safest option is for the intended parent to use his/her own sperm/egg in creating the embryo, and to use a gestational surrogate.
  2. In the donation context, anonymous sperm/egg donors typically have no parental rights or financial obligations to children born from those sperm/eggs. On the other hand, known donors who choose to be a part of the lives of the children born from his/her sperm/egg, may actually become financially obligated and have legal rights to the child.

Although ART planning is complex and may seem overwhelming, many potential issues can be limited or avoided altogether by ensuring that the proper legal documents are in place prior to beginning the ART process. It is always advisable to seek help from attorneys experienced in these matters.

Are you and your partner or spouse ready to start your family?  Let us help.  Contact Maureen Cohon or one of the experienced other attorneys in our Nontraditional Couples and Families practice group to make sure that your rights are protected.  

Tiffany Jenca is a third-year law student at Duquesne University and was a 2013 summer associate in the firm’s Pittsburgh office.

RIGHT TO MARRY LAWSUITS SET TO SKYROCKET AFTER DOMA DECISION

By: Rob Tyler

            Just weeks after the U.S. Supreme Court’s landmark decision overturning Section 3 of DOMA, there has been a drastic increase in the number of lawsuits filed throughout the country challenging state laws and constitutional amendments that prohibit same-sex marriage.  At the forefront are lawsuits filed in Pennsylvania, Arkansas and Illinois.

            The reason for this sudden influx appear two-fold.  First, the U.S. Supreme Court did not address how a couple who marries in a state that recognizes same-sex marriage is treated for federal purposes if the couples actually resides in a state that does not permit same-sex marriage.  Second, the U.S. Supreme Court failed to decide the fate of same-sex marriage in the states that do not currently recognize such marriages.

            The Pennsylvania suit, Whitewood v. Corbett, addresses both of these issues.  Of the 10 couples who initiated the suit, half have legally married in other states, but, of course, those marriages are not recognized in Pennsylvania.  The other couples are Pennsylvania residents who are unable to get married under current Pennsylvania law. 

              Interestingly, the complaint filed in Whitewood includes a sex discrimination claim, which may appeal to Justice Kennedy, who raised the sex discrimination issue during oral argument for Hollingsworth v. Perry.   However, the Supreme Court never actually addressed the sex discrimination issue in either the Perry or Windsor opinion.  As such, if Whitewood is appealed to the Supreme Court, the sex discrimination issue may be one of “first impression” for the Court.

             In the Illinois case, Darby v. Orr, the ACLU has filed a motion for summary judgment, requesting a swift end to the harm and indignity that same-sex couples without the freedom to marry face, which may include the continued inability to access federal marriage benefits.  The motion includes the testimony of a number of experts who believe that now is the appropriate time to legalize same-sex marriage across the country.     

            The Arkansas case, Wright v. Arkansas, contains claims that Arkansas’ constitutional ban on same-sex marriage violates the equal protection clause of the U.S. Constitution and the due process clause of the Arkansas Constitution.  Furthermore, the case seeks a ruling that the ban violates the Full Faith and Credit Clause of the U.S. Constitution by not extending to Arkansas citizens the same marriage rights that are available in other states, and by refusing to recognize same-sex marriages that have been entered into lawfully in other states.  A second lawsuit in Arkansas is rumored to be filed soon, and there have also been two proposals to amend the Arkansas Constitution to allow for same-sex marriage.

            According to the ACLU, its campaign for equal rights for same-sex couples has only just begun.  The ACLU plans on filing similar suits in North Carolina and Virginia.  With this kind of a push, and with Section 3 of DOMA overturned, state laws/amendments that prohibit same-sex couples from marrying are beginning to appear quite vulnerable.  As always, we will continue to keep you updated as these, and other, lawsuits develop.

Rob Tyler is an associate in the firm’s Pittsburgh office and focuses his practice on a variety of litigation matters.  He is also a member of the Nontraditional Couples and Families Group.

Politics, History and Kathleen Kane’s Decision Not to Defend PA’s DOMA

by:  Mariah L. Passarelli

It has been a landmark year for same sex marriage rights in the United States, culminating in last month’s historic Supreme Court decision  in United States v. Windsor, 133 S.Ct. 2675 (2013), overturning Section 3 of the federal Defense of Marriage Act (“DOMA”).  A few days after the Windsor verdict was announced, both proponents and opponents of same sex marriage began sifting through the legal implications of the ruling.  Does Windsor mean that all same sex couples can file joint federal tax returns?  What if the couple got married in a state where same sex marriage is legal, but lives in a state where it is not?  What about social security benefits?  What about federal inheritance tax?  At this point, there are still more questions than answers. 

What we do know is that, as significant as Windsor is, it does not automatically confer additional rights to legally married same sex couples who live in a state, like Pennsylvania, where same sex marriage is not permitted.  Here, and in the other 36 states like us, same sex marriage remains a matter of state law. 

Less than two weeks after the Windsor verdict was announced, a group of 23 people (10 couples, a widow, and a lesbian couple’s two children), represented by the American Civil Liberties Union, filed the first post-Windsor lawsuit challenging a state’s gay marriage ban.  The case, Whitewood v. Corbett, was filed in federal court in Harrisburg, Pennsylvania, where it is expected to take several years to wind through the judicial system.  The lawsuit names, among other state officials, Pennsylvania Governor Tom Corbett and Pennsylvania Attorney General Kathleen Kane as defendants.

Tracing the political paths of Attorney General Kane and Governor Corbett leads you to an interesting crossroads.  Corbett was first appointed as Pennsylvania Attorney General in 1995, by then Governor Tom Ridge, to fill the remainder of the term when Attorney General Ernie Preate was criminally convicted of racketeering and corruption.  A condition on Corbett’s appointment, placed on him by PA Senate Democrats, was that he could not run for re-election as an incumbent the following year.  After two terms out of office, Corbett ran for Attorney General and was elected in 2004 and again in 2008.  Corbett served as AG for six years before being elected Governor of Pennsylvania in 2010. 

Upon Corbett’s departure, he appointed his own interim successor, Attorney General Linda Kelly, to fill the remaining two years of his term.  In 2012, Kathleen Kane became the first woman – and first Democrat – elected Pennsylvania Attorney General.  By garnering more than three million votes, Attorney General Kane outperformed both President Obama and PA Democratic Senator Bob Casey on the 2012 ballot.  In the short time since her election, Kane has often used this mandate to lobby against the Governor’s conservative initiatives. 

Perhaps, then, it is no surprise that three days after the Whitewood lawsuit was filed, Attorney General Kane announced that her office will not defend the Pennsylvania DOMA statute.  While Kane’s move is by no means the final word on the issue, it is a blow to the ban’s supporters.  To understand how much so, one must examine the important and unique role of Pennsylvania’s Attorney General. 

In 1980, with passage of the Commonwealth Attorneys Act, the PA Attorney General became an elected (as opposed to appointed) position.  The Attorney General is the chief law enforcement officer in the state and is completely independent from the Governor.  The AG’s office is responsible for state criminal prosecution and consumer protection.  It is also tasked with defending the Commonwealth and its various state agencies (including the Governor’s office) against civil lawsuits, like Whitewood

Indeed, since her announcement not to defend PA DOMA, state Republicans have argued that Kane’s decision is a dereliction of her duties as Attorney General.  Thus far, there appears to be no teeth to this argument, since the Commonwealth Attorneys Act contains conflicting provisions.  One provision states that the AG shall defend all state statutes absent an appropriate court ruling overturning them, another section states that the AG may refer defense of statutes to the Governor’s office if such a move is in the best interests of the Commonwealth.  One thing is certain, however: Attorney General Kane’s decision is identical to that made by United States Attorney General Eric Holder and the Obama administration, which decided that the Department of Justice would not defend federal DOMA in the Windsor case.

In announcing her decision not to defend the PA gay marriage ban, Kane stated “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA as I believe it to be wholly unconstitutional.”  At this point, defense of the PA DOMA statute falls to the Governor’s Office who must delegate the case to one of its own attorneys or hire counsel from the private sector.  Because the Governor and the Attorney General are completely independent from one another, Governor Corbett cannot force Attorney General Kane to defend the statute.  Thus far, there has been no comment from the Governor’s office regarding whether or how he will defend the ban, although Governor Corbett’s spokesman has said the Governor supports PA DOMA.  With the Governor’s run for re-election just a year away, his handling of the case will have both personal political and public implications. To say the least, stay tuned!

President Obama’s Statement on the Supreme Court Ruling

Here’s President Obama’s statement on the Supreme Court ruling on the Defense of Marriage Act 

President Obama released the statement below after the Supreme Court mades its ruling this morning on the Defense of Marriage Act. Check it out, then forward this message to share it with your friends. 

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well. 

 This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.  

 So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly. 

 On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.   

 The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.

 http://www.whitehouse.gov/doma-statement