Updates from the Family Law Institute

I am attending the annual Family Law Institute in Los Angeles, in conjunction with the annual LGBT lawyers conference. The FLI is always the best venue for learning about the new areas of concern in the same-sex couples arena, and this year was as full of insights as usual. Here are just a few of the more interesting lessons.

LGBT Elder Law: as many of us (including me) age, our legal needs also evolve. It’s not just a matter of having valid wills and powers of attorney, it also means having access to fair treatment from a medical provider, access to hospitals, and fair treatment in nursing homes. The nursing home aspect is perhaps the most challenging, as it involves subtle forms of discrimination, isolation and fear by straight residents, and difficult behaviors resulting from dementia and disability.

Tax & Estate Law: While the past few years have focused on the challenges of drafting estate plans in light of the Defense of Marriage Act (and the lack of federal estate tax marital exemption), the new questions are dealing with planning in anticipation of the repeal or invalidation of DOMA — what a welcome shift of concerns! There is great confidence that DOMA will die, either through court action or congressional votes, some time in the next two or three years. When that happens, high net worth same-sex couples will be able to take advantage of the unlimited marital exemption from estate tax. There will still be concerns about who is a lawful child, what to do with assets acquired earlier, and how to deal with state laws for those living in non-recognition states — so don’t worry, there will still be hard work to do!

Surrogacy and Parentage: the painful struggles for parentage recognition for non-bio or non-legal parents continue, and one of the most powerful sessions at the Institute featured a panel of lesbian and gay parents who had fought for their rights, as LGBT or non-bio parents. While good law is being made in many jurisdictions, there are still many setbacks (think North Carolina) and great concern for those who have not become legal parents. On the surrogacy front, the law is improving, but the ethical challenges remain serious. Recent prosecutions of attorneys arranging questionable surrogacy contracts and the rise of “out-sourcing” of births to India raise difficult questions for everyone involved.

Immigration: there are definitely some improvements here, with the non-enforcement of deportation orders under the administration’s newly announced policy. But DOMA still creates a serious impediment for partners of married lesbians and gay men, and the “permanent partners” bill is not likely to succeed in Congress any time soon.

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