Same-sex couples can legally protect themselves, Shutt tells paralegals

COLUMBIA, SOUTH CAOLINA – From “don’t ask, don’t tell” to the Defense of Marriage Act, the law is littered with acts, most of them subsequently declared unconstitutional or repealed, that restrict the rights of lesbian, gay, bisexual or transgender couples.

Though the times and the laws slowly are changing, a number of statutes still prevent LGBT individuals from enjoying the rights that everyone else does,  attorney Nekki Shutt told the Palmetto Paralegals Association.

Shutt, one the founders of the SC Equality Coalition Inc., conducted a recent training seminar for the paralegals. She’s a Certified Specialist in Labor and Employment Law, representing clients in matters such as discrimination, wrongful termination and federal benefits issues under ERISA.

She and M Malissa Burnette also are members of SC Equality Post-DOMA Litigation Task Force that’s litigating to obtain equal rights for LGBT South Carolinians. The two are involved in recent marriage equality litigation involving a Charleston County couple.

Shutt talked to the paralegals about a number of legal issues the South Carolina LGBT community faces.

South Carolina still enforces its same-sex marriage ban even though it’s unconstitutional under cases such as Bostic v Schaefer, which ended Virginia’s same-sex marriage ban, and United States v Windsor, which forced the Internal Revenue Service to refund taxes a woman had paid on her wife’s estate.

There are a number of ways same-sex couples can protect themselves until that ban is overturned, though, Shutt said.

Legal protection for same-sex couples

Creating cohabitation or joint living or partnership agreements is a great step, Shutt said.

These contracts allow couples to legally share assets and property, she explained. It outlines who is responsible for which expenses and what would happen to assets if the relationship ends. The contracts should not, however, require cohabitation or the same-sex relationship. Doing so risks a successful legal challenge.

Same-sex couples also must create health care powers of attorney that allow the partners to make medical decisions for each other in the event one partner becomes incapacitated. These documents also allow the partner to be in the hospital room of a seriously ill loved one. Without this document, in South Carolina the legal next-of-kin makes these decisions.

A general durable power of attorney is another good tool. These let partners make financial decisions for each other. They can be narrow, allowing partners to access bank accounts, or broad, letting partners sell property.

Wills also are crucial for same-sex couples. Without them, blood relatives automatically inherit the estate and the surviving partner gets nothing. Guardians for minor children also can be appointed in wills, a crucial step for same-sex couples raising children together.

Same-sex couples also may consider look into transferring assets to living trusts. This lets the partners avoid high probate costs that they often face because they’re not legally spouses in states such as South Carolina.