Resource Guide for LGBT-headed Families - GEORGIA
Despite the advances in social recognition of LGBT families (and in some states the legal recognition) the laws of Georgia do not automatically protect our families in some circumstances. This page is intended to provide you with general guidance that will help you to better protect your family in certain circumstances.
Completed in 2016 by Family Equality Council on behalf of Georgia Equality, this guide contains the most up-to-date information on the legal landscape in the state of Georgia concerning LGBTQ-headed families.
II. Recommended Legal Documents
Advance Directive for Healthcare
An Advance Directive for Health Care allows Georgians to direct whom they want to make medical decisions for them, as well as providing for end-of-life choices in the event they are unable to express that intent at the time that care is required. You can find the Georgia Advance Directive Form on our website at: http://www.familyequality.org/links/ga_adh.
Last Will and Testament
A Will is a legal document by which a person directs how real estate and personal property will be distributed upon death. Unless same-sex couples have Wills in which their partners are designated beneficiaries, that partner will be unable to inherit any of the deceased partner’s property. Importantly, a Will also provides the opportunity to designate who should become guardian to any minor children. If you are not both legal parents, and the legal parent dies, a judge will decide who the guardian will be. Naming your partner in your Will expresses your wishes and increases the likelihood that a judge will respect those wishes about who should raise your children after your death.
A Will does not affect beneficiaries you have designated on bank accounts, insurance policies, or retirement accounts. The company that holds those funds will disburse them to your designated beneficiary. You should make sure such designations are up-to-date.
More information is available from the State Bar of Georgia, at http://www.gabar.org/newsandpublications/consumerpamphlets/upload/wills_09.pdf.
Financial Power of Attorney
It is important that partners consider providing each other with the power to handle personal finances on their behalf through a “financial power of attorney” in the event that a partner becomes unable to manage his/her own finances due to sickness, disability, etc. Georgia law has a specific form for this purpose accessible at http://www.familyequality.org/links/ga_fpa.
Domestic Partnership Agreement
A Domestic Partnership Agreement expresses a couple’s understanding as to how they will share income, expenses, assets and liabilities. It also discusses a plan for how those things will be divided in the event the couple separates.
An agreement that expresses a couple’s understanding of how they will raise children and what each parent’s rights and obligations are with respect to each child while they are together and in the event that the parents separate.
Although the Co-parenting and Partnership agreements are not "standard" and will require the advice of an LGBT-aware attorney licensed in Georgia (and, could still prove not to be legally binding) they are often useful to have. These documents can establish clear understanding between the parties and can provide clarification about the intent and wishes of all involved. They may be useful, at some future time, should an issue ever come before a court/judge in the case of death or dissolution of the relationship, etc.
III. Relationship Recognition
Because of the US Supreme Court’s ruling in the DOMA case, the federal government can now recognize same-sex marriages for the purposes of federal benefits. While we are still waiting for guidance from several federal agencies, several of them have already issued new administrative rules that affect married same-sex couples, regardless of the state in which they live.
If you and your partner have or become legally married (civil unions or domestic partnerships will not count) in another state (or country) and live in Georgia, the US Supreme Court’s ruling will have an impact on you in a variety of ways, including but not limited to
- Federal income tax filing status
- The Federal government will now recognize your marriage for all income tax related purposes. Therefore, if you are legally married, you will be required to file as married – either separately or jointly – beginning with the 2013 tax year. And depending on how long you have been married, you may also be able to amend your federal tax returns for the past three years to receive any additional refunds.
- Regardless of where you live, a US citizen may sponsor a same-sex spouse (or fiancée/fiancé) for purposes of immigration.
- Veteran’s Benefits
- Spouses in same-sex marriages are entitled to military veteran’s benefits – regardless of where they live.
For more information on the above-mentioned federal benefits and additional federal benefits and programs such as Social Security, Medicare, Medicaid and others, please go on-line to http://www.familyequality.org/get_informed/advocacy/after_doma/
Despite these changes in federal law, a marriage entered into in another state does not provide you with any relationship recognition under Georgia state law. Because Georgia law does not currently respect marriages between same-sex couples, there are several legal documents you and your partner/spouse should obtain to better protect your family (see below). Additionally, you should also be aware that because you are not considered legally married under Georgia law, it is very likely that you will not be able to dissolve your marriage by filing for divorce in Georgia. You will instead be required to go the state where you were married (or another state that recognizes your marriage), and may have to establish residency there before filing for divorce.
IV. Domestic Partner Benefits
Domestic Partnership benefits, such as health insurance for partners and their children, etc., are available for employees of a number of private employers throughout the state of Georgia. Each employer sets forth its own requirements for establishing eligibility for DP benefits. One common way to establish eligibility is to be “registered domestic partners.” Domestic Partner Registries are currently available in the following Georgia cities/municipalities: Atlanta, Fulton and Athens-Clarke Counties, and the City of Avondale Estates. To register in one of these locations please contact the clerk’s office for information on local requirements.
- Permits single LGBT individuals to petition to adopt.
- GA law explicitly permits married couples to jointly petition to adopt. And, while there is no explicit prohibition, no state court has heard the issue of whether same-sex couples can or cannot jointly petition to adopt. Anyone seeking to do an adoption should consult with an attorney who specializes in adoptions for LGBT people/couples.
- Georgia law may permit a same-sex co-parent to petition to adopt partner’s child or child of the relationship. There is no explicit prohibition and some courts have permitted such adoptions. As with joint adoptions, we recommend seeking advice from an attorney who specializes in adoptions for LGBT couples.
Although there is no prohibition on surrogacy in Georgia, any provision of a surrogacy contract that surrenders parental rights before birth is prohibited. This is a significant obstacle. Once again, we strongly recommended that couples seek an attorney who specializes in surrogacy for LGBT people/couples before entering into a surrogacy arrangement or contract.
TIPS FOR LEGAL DOCUMENTS:
- Always have copies of these forms with you, we recommend carrying electronic copies on a thumb drive attached to your keychain.
- Keep several signed original copies of the forms.
- Write with a blue pen when completing or signing forms so health care providers don’t question whether the document is an original.
- Always have original copies with you when you travel out of state.
- Keep an extra copy of your forms somewhere easy for a close friend of family member to find.
- Keep copies online on a secure server.
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Disclaimer: Because Georgia law is unclear in its treatment of LGBT parents, individuals, and same-sex couples, you should always consult a lawyer with expertise in LGBT family law to determine what options are available to you when creating legal documents to protect yourself and your family. A lawyer can ensure that the documents are written and executed to the fullest extent of Georgia law. Please remember that lawyers who advertise in LGBT publications or on LGBT websites may not have expertise in LGBT family law issues. It is important to ask specific questions before hiring an attorney to ensure complete competency and knowledge about legal issues that arise for LGBT individuals, couples and families. If you need assistance in finding a lawyer, please contact Family Equality Council. This is based on the information available as of October 2013 and is subject to change based on changes in federal or state laws.