Careful Estate Planning Remains Vital for Same-Sex Couples

Even as Domestic Partnership Registry Survives Court Challenge

Wisconsin’s 2009 statute creating a domestic partnership registry survived a key court challenge, as a state appeals court upheld the constitutionality of the law recently. Even though the statute survived the lawsuit, its scope is still limited in nature, making a thorough estate plan a must for same-sex couples.

In its December ruling, Wisconsin’s 4th District Court of Appeals ruled that, when the state’s voters decided in 2006 to amend the state Constitution to ban gay marriage, that referendum did not bar the establishment of the sort of same-sex partnership registry created by the legislature three years later. Because the domestic partnership registry affords registered same-sex couples 43 enumerated rights, as opposed to the 200+ rights or privileges granted to married couples under state law, the court decided that the registry legislation did not create a “legal status identical or substantially similar to that of marriage,” and, as a result, was constitutional.

Although the Wisconsin registry provides several essential rights, it only goes so far, and registering a partnership with the state is not a substitute for careful, complete estate planning. As Fair Wisconsin, a rights group that defended the partnership legislation before the Court of Appeals, explained in its reference guide regarding the registry: “these privileges are limited and do not take the place of having a health care power of attorney, disposition on death authorization, HIPAA authorization, and similar documents that provide much stronger protections.”

The registry legislation does not give registered partners any rights regarding important items like funeral or burial arrangements or care for minor children. Additionally, certain couples may not qualify for registration. For example, if one partner is transgender, and the state does not identify them as members of the same sex, the state may not allow them to register under the law.

The law, however, does provide several essential rights and privileges, including the right to visit a registered partner in the hospital and to inherit from a deceased partner, even without a will. Recent cases in other states highlighted the importance of rights like visitation. In one 2007 example, an Indiana man sought guardianship over his partner of 25+ years after the partner suffered a stroke. The stricken man’s parents asked the court to appoint them guardians.

The court sided with the parents as, under Indiana law, the two men had no legal relationship to each other. The parents excluded the partner from having any contact with their son, even by telephone. An Indiana appeals court, in a 2-1 ruling, upheld the guardianship but ordered visitation for the partner. The dissenting judge would have upheld the lower court entirely, including allowing the parents to exclude the partner from their son’s life entirely.

While Wisconsin residents in same-sex relationships have more rights than those in some other states, it remains very wise to consult an experienced Wisconsin estate planning attorney about creating an estate plan. Attorney Daniel J. Krause of Krause Law Offices LLC is a knowledgeable Madison estate planning attorney who can advise you and your partner about your options. With the help of Attorney Daniel J. Krause, you can get a plan that will provide you with the comfort of knowing that, even if a medical emergency or tragedy strikes, your family will be prepared.

Contact us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation.

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