Same-sex couples: These forms could help protect your rights if same-sex marriage ends

Sean Scott, Cincinnati Enquirer
·3 min read
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For married same-sex couples, a marriage license may soon no longer be enough to protect their union.

For same-sex couples in Ohio and Kentucky, Supreme Court Justice Clarence Thomas's call to reconsider the case that legalized gay marriage could spell trouble. These forms could offer some legal protection if the case is overturned.
For same-sex couples in Ohio and Kentucky, Supreme Court Justice Clarence Thomas's call to reconsider the case that legalized gay marriage could spell trouble. These forms could offer some legal protection if the case is overturned.

Since Supreme Court Justice Clarence Thomas recently called on the court to reconsider Obergefell v. Hodges, the case that guaranteed marriage equality, it's even more important for same-sex couples to fill out paperwork that could help protect their marriages.

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Whether you're planning for medical emergencies or ensuring your partner and kids are in good shape if you die, these are the documents you should look into.

Ohio paperwork

Prenuptial agreement: A prenup is an agreement two people sign before getting married. It specifies how your assets including money and property will be divided in case you get divorced. It can also include whether one partner will have to support the other financially after divorce, and for how long. Ohio does not allow postnuptial agreements, which are legal documents signed after marriage to lay out the same parameters as prenups, so it's important for couples to discuss this before the wedding.

Powers of attorney: Powers of attorney qualify anyone to act on your behalf. The main options in Ohio are financial and medical powers of attorney, or living wills. Powers of attorney need to be signed with a notary or two witnesses. The documents can either be durable, meaning they're still valid even if you're incapacitated, or general, meaning the person can't make decisions for you if you can't make them for yourself. Powers of attorney can also be limited to a one-time decision or specific range of time.

Last will and testament:  If you die without a will, Ohio law specifies how the assets will be divided between a surviving spouse and children in different scenarios, regardless of your wishes. For couples who aren't legally married, creating a will lets you ensure that your partner will get some of your assets.

Second-parent adoption: For stepparents and same-sex couples where one partner has biological children, second-parent adoption ensures that both parents have an equal legal relationship with their kids, even if one isn't listed on the birth certificate. Couples who want to go through second-parent adoption should reach out to local attorneys to start the process.

Ohio resident Jim Obergefell was the plaintiff in the 2015 U.S. Supreme Court decision which legalized same-sex marriage. Now, Justice Clarence Thomas has called for that decision to be reevaluated, prompting some same-sex couples to look for ways to protect their marriages.
Ohio resident Jim Obergefell was the plaintiff in the 2015 U.S. Supreme Court decision which legalized same-sex marriage. Now, Justice Clarence Thomas has called for that decision to be reevaluated, prompting some same-sex couples to look for ways to protect their marriages.

Kentucky paperwork

Prenuptial agreement: Kentucky prenups function the same as Ohio prenups and cover finances, property, alimony and insurance. Kentucky also allows for postnuptial agreements, which can help couples who didn't sign a prenup before getting married.

Powers of attorney: Kentucky's powers of attorney, including financial, function the same as Ohio's but must be signed with a notary. Unlike in Ohio, two witnesses can't stand in for the notary. The medical power of attorney form is called an advance directive in Kentucky.

Last will and testament: Like Ohio, Kentucky has laws on the book to specify how your money and property will be divided if you die without a will. Spouses are prioritized for personal property and money, then children. If you want a say in where your money and property goes, you should work with an attorney to draft your will early instead of waiting until it feels more necessary.

Second-parent adoption: In Kentucky, both biological parents of a child have to give their consent for a stepparent to legally adopt the child. Sometimes the second biological parent doesn't have to consent,  if they're in jail or have been absent for more than a year, for example. As in Ohio, Kentucky couples should get an attorney to help with the process.

This article originally appeared on Cincinnati Enquirer: What legal forms can protect rights of same-sex couples?