Dec. 19, 2018 – You may know someone who is using assisted reproductive technology to become a parent, is in a same-sex marriage, or is in a relationship but is not married. Almost certainly, such individuals are among your clients.
The U.S. federal and state courts and legislative bodies are starting to keep pace with fluid societal conceptions of “family.” So, too, must Wisconsin attorneys.
A vital guide is Advising the Evolving Family, recently released from State Bar of Wisconsin PINNACLE®.
Two New Guides on the Evolving Family
Advising the Evolving Family is one of two new volumes – with Sexual Orientation, Gender Identity, and the Law – that expands on the previously published Sexual Orientation and the Law, which the State Bar released shortly before the U.S. Supreme Court’s decision Obergefell v. Hodges in 2015. Obergefell affirmed that all individuals have the right to marry whomever they choose.
The law as it applies to LGBTQ families has significantly changed in the last three years – both in Wisconsin and nationally, according to Theresa L. Roetter, co-author of the chapter on family formation and protection. “Decisions by the federal courts in Wisconsin, the U.S. Supreme Court in Obergefell v. Hodges, and V.L. v. E.L. had a significant effect on Wisconsin state law and practice regarding estate planning, family building, and property ownership, among other things,” Roetter says.
Lawyers advising LGBTQ clients benefit from the most current legal strategies and practice tips that are shared in Advising the Evolving Family, Roetter says.
Same-Sex Families with Children
Roetter and her co-author, Dudak Leiter, advise lawyers on both what to do and what not to do when advising clients who are conceiving a child. They point out that legally married different-sex couples without fertility issues rarely consult lawyers about conception, but that “once a same-sex couple decides to have a child, their first step is usually – and should be – retaining a lawyer.”
In such cases, lawyers should:
ensure each partner has sufficient representation;
explain relevant Wisconsin law regarding gay and lesbian families, and the associated complexities and risks;
draft contracts and review contracts the clients have been asked to sign by other entities or individuals; and
handle court proceedings and hearings.
Roetter and Dudak Leiter explain how to carry out the recommended tasks and why to avoid those on the “don’t” list – such as matching birth parents and prospective adoptive parents, matching surrogate carriers and intended parents, and counseling intended parents on medical procedures.
Help Unmarried Couples Engage in Effective Estate Planning
Without proper estate planning, the unmarried partner will have essentially no standing as to the legal or financial affairs of the other partner, says lead author Christopher S. Krimmer. “An unmarried partner is considered a stranger under Wisconsin’s intestacy law.”
The initial meeting with clients who are in same-sex or unmarried relationships can have special significance, Krimmer says.
Be prepared for some heightened anxiety and respond appropriately, Krimmer advises. But lawyers make first meetings go more smoothly by ensuring their estate planning questionnaires do not reflect hidden or inadvertent biases.
One way to do so is to add the word “Partner” next to each question regarding “Spouse.” Another way is to have a separate questionnaire for gay and lesbian clients, with questions such as:
“Did you marry your partner before June 26, 2015? If so, when and where?”
“If you were previously married to a same-sex spouse, did you obtain a divorce or annulment of that marriage before entering into this current marriage?”
“Do you and your partner have any children together? If so, did you participate in artificial insemination? If so, did either partner legally adopt the child in any jurisdiction?”
Assist Clients Through Relationship Transitions
Many couples, of course, end their relationships before they are parted by death. As Krimmer notes, “Ironically, one of the most important benefits of marriage is divorce.”
In his chapter on legal and equitable claims on termination, Krimmer identifies and suggests strategies for using various statutes and cases when a client is ending a relationship to which Wis. Stat. chapter 767 does not apply.
For example, an individual seeking ownership of property accumulated during a relationship might make an unjust-enrichment claim, and a person who wants to maintain ties to a child for whom he or she is not considered a legal parent might be awarded visitation rights.
The book also includes a chapter on the state’s domestic partnership registries, which offered some marriage-like rights to registrants during the registries’ availability.
How to Order
Advising the Evolving Family is available in print for $149 for members and $187 for nonmembers.
For more information or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.