Out in the Mountains

    

A Legal Pri

by Nora Landon

“Gay and lesbian people at this point
are largely without civil rights and particu-
larly without rights to fonn families le-
gally.”

With these words Heather Wishik
began her discussion of the legal issues
facing lesbian and gay families at the recent
Vermont Law School seminar, "Legal Per-
spectives on Lesbian and Gay Concerns in
the 1990's."

These issues are a particular interest
of Wishik, and she knows a lot about them.
She has practiced law in Vermont since
1977 as a private attorney, as a faculty
member at Vermont Law School, and as a
lobbyist for lesbian and gay civil rights in
the Vermont Legislature. She currently
serves as counsel at the Vennont Depart-
ment of Public Service.

Wishik described the emotional cli-
mate in which many gay men and lesbians
seek legal advice, noting that many do not
feel good aboutbeing gay.The majority are
closeted in at least some part of their lives
and are afraid of discovery. They often
have poor relationships with their families
of origin. These factors make them particu-
larly vulnerable in the legal system. Be-
cause of that, lawyers need to educate
themselves about and be sensitive to the
special circumstances of their gay and les-
bian clients.

Wishik addressed three topics: the
legal needs of gay and lesbian individuals,
of couples, and special issues concerning
children.

Although gay men and lesbians do not
have the legal protections that heterosexu-
als take for granted, laws do exist in Ver-
mont and other states which provide some
protection for people in alternative living
arrangements. It is vital for gay people to

learn about the tools that are available and
how to make use of them.

Individual gay and lesbian adults, in or
out of relationships, with or without chil-
dren, have special legal needs. In cases of
incapacity, the law assumes that the best
people to make decisions are blood rela-
tives, usually parents or siblings. However,
Vermont has a strong and durable power of
attorney for health care which enables you
to designate someone else to make these
decisions if you are incapacitated. Vermont
also has a power of attorney for business
relationships.

Although it is essential for lesbians
and gay men to make wills, they are just as
likely as straight people to avoid doing so.
In order to leave the contents of your estate
to those you wish, you must have a will, and
it must be legal. To be legal in Vermont, a
will must have three witnesses. It is helpful
to include burial instructions in the will or
in a separate letter. If you choose not to
leave anything to your family of origin, you
should state that explicitly, to reduce the
risk of a contest.

Because of difficult family relation-
ships, the wills of lesbians and gay men are
often contested. A good way to dispose of
part of your estate is through life insurance,
where there is no probate and the insurance
company must honor your beneficiary
designation. However, if you name your
partner as primary beneficiary and the rela-
tionship ends, don’t forget to change the
beneficiary.

Federal law permits claiming an unre-
lated person as a dependent on your income
tax return if he or she is living in your
household, receiving more than half of
their support from you, and earning less
than $1,000. This means, for example, that
you can claim a partner who is a full-time

mer for Lesbian and Gay Families

student or a partner’s child as a dependent
if he or she meets these conditions. You
cannot, however, file as a head of house-
hold, since that requires a legally defined
relationship with the dependent.

Gay people cannot get mariied any-
where in the world except Denmark, where
there is a form of legal union giving couples
most of the advantages and disadvantages
of marriage except the right to adopt or
obtain joint custody of children. Some reli-
gious denominations in this country, for
example the Unitarian-Universalists, will
provide commitment ceremonies for gay
and lesbian couples.

Many couples visit lawyers because
they want their relationship to be recog-
nized in some way. Often, this means set-
ting up a household and/or buying a house
together. The couple should have a cohabi-
tation (partnership) agreement to sort out
how they are going to run their household
before they start buying joint property and
co-mingling assets. Wishik urges couples
in this situation to consult a lawyer, as he or
she can then help them make the decisions
and arrangements that will enable them to
live their lives together the way they
choose, avoid problems with the IRS, and
sort out their affairs with a minimum of
complication should the relationship end.

A couple buying a house together
should have a contract governing financial
issues such as the downpayment or mort-
gage payments, and disposition of the prop-
erty in the event of death of one of the
partners or break-up of the relationship.
Wishik feels strongly that these and other
contracts should include an agreement to
seek binding arbitration in case of a dispute
— that it is in the best interests of all con-
cerned to stay out of court. When cases go
(continued on next page)

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