Recommendations to Prepare for Any Policy Changes
Adapted from recommendations provided by All Family Legal, PC.
- If you're legally married, you need not get married again. A marriage is a marriage, and there's no benefit to entering into another marriage (with the same person). In fact, it could create confusion if you had two dates of marriage.
- Marriage equality is the law throughout the US. If the federal government were to
change the law and refuse to recognize marriage equality prospectively, your already-existing
marriage would likely remain valid.
- Similarly, if a state were to roll back its freedom to marry, and you were already validly married, it is extremely unlikely that such decisions will impact pre-existing marriages.
- Even if the freedom to marry is impacted, such changes will not occur overnight. If you're afraid and considering getting legally married, please take the time to think through all of the automatic rights and responsibilities that come with marriage, whether at the time of death or divorce. Consider preparing a nuptial agreement if you wish to modify those rights.
- If you are considering parental rights to children in your care, and have NOT gotten
a judgment to protect your parentage (adoption or parentage judgment), consider doing so now. A birth certificate (even with your name listed as a parent) may not necessarily
protect you fully. Some states may require a marriage to provide the adoption; others
have different options based on different marital statuses.
- If you've already gotten the judgment, make sure you have a certified copy somewhere safe and accessible
- That Court Order of Adoption or Parentage is final and binding, no matter what happens in the future around marriage. The Full Faith and Credit Clause of the US Constitution should require that that judgment be recognized in every state in the country.
- If you have sperm, eggs or embryos in the freezer, consider consulting with a fertility lawyer in the state where they are cryopreserved to determine if any extra protections need to be put in place or if they advise for them to be moved out of state.
- If your genetic material is frozen in California, double check your clinic forms and make sure that they are clear on what would happen to it in the event of death or separation. Keep in mind that the enforceability of the clinic forms is still a legal gray area. A California fertility lawyer may be able to write you a contract that will be more likely to be enforceable.
- Make sure that your children are specifically in your estate plan and your future children are adequately described. The traditional language used by estate planners, such as "my natural and adopted children" is often not sufficient for LGBTQ families.
- Likewise, make sure that your spouse/partner is specifically named and not just referred to as any spouse you may have.
- If any person named in your estate plan is trans, make sure your estate plan reflects their correct name/gender.
- Don't forget to align any of the language about frozen sperm, eggs or embryos with what you have with on any other forms.
- Have a health care surrogate/proxy named along with an alternate in case the first person isn't available.
- You don't want to encounter a provider who wants to deny your spouse/partner entry to see you.
- It is critical that you have an advance directive and healthcare power of attorney stating who should have access and decision-making authority if you are unable to
communicate for yourself.
- If applicable, be sure that it specifies directives regarding continuation of gender affirming care.
- Double check your beneficiaries on any bank accounts, investments, retirement accounts, life insurance or accidental death policies you may have.
- If you would like to amend your gender on any of your ID documents, get the federal documents updated ASAP. Gender changes can currently be made for passport and social security without a
court order.
- Act in the way that feels best for your individual circumstances. Having a nonbinary gender marker (X) may expose you to (more) potential harassment, discrimination or other risks.
- Children of US Citizens born abroad usually have a Consular Report of Birth Abroad (CRBA) instead of a birth certificate. Get the gender marker aligned on the CRBA asap.
- If you can get a court order, birth certificate, and/or driver's license, affirming
your gender and chosen name, consider doing so as soon as possible.
- In many states, getting an updated driver's license is an administrative process that can be done independently of the birth certificate status and sometimes without a court order.
- In California, in addition to updating your own birth certificate to reflect your chosen name and gender, you may also be able to update your child's birth certificate and/or your marriage certificate.
- If you DO NOT have an option for correction of gender on your birth certificate and/or driver license, consider getting a passport or passport card with the correct gender marker listed sooner rather than later. In most cases, you can use a passport or passport card to prove identity and US citizenship in lieu of a birth certificate.
- Even if your state of birth will not change your birth certificate to reflect the correct gender, if you live in a state that will give you a court order of gender affirmation, that might help in your state of birth. Some state vital records offices will honor out of state court orders even if their own courts do not provide them.
- If your child is trans and cannot get a corrected birth certificate, you may want a legal document that identifies the parent-child relationship without outing your child. Consider getting a gender neutral or correctly gendered court order such as an adoption order or a parentage order (sometimes called parentage judgment) that correctly identifies your child's chosen name and gender.