Feature

LGBT Issues Beyond Obergefell

Abby R. Rubenfeld, Elizabeth A. Johnson, Scott N. Friedman, Cynthia L. Barrett, Patricia A. Cain, Joan M. Burda

The Supreme Court decided in Obergefell v. Hodges, 576 U.S. ___ (2015), that there is a constitutional right of same-sex couples to marry. But did this decision settle any and all issues applicable to the lesbian, gay, bisexual, and transgender (LGBT) community? Unfortunately, numerous legal questions regarding the lives of LGBT persons remain unanswered by Obergefell. Elsewhere in this issue of GPSolo, we address ongoing concerns such as the rights of transgender individuals and the necessity of combating the bullying of LGBT youth, as well as so-called religious exemptions from enforcing the civil rights of LGBT individuals. In the multipart article that follows, GPSolo has turned to six leading authorities in the field to walk you through an additional set of issues that remain in the wake of Obergefell, ranging from matters of family formation, to family law issues of custody and support, to descent and medical issues, to questions of tax law, and finally to other estate planning questions that LGBT clients must address.

Family Law: The Fight Continues after Marriage Equality

By Abby R. Rubenfeld

On June 26, 2015, the same day on which the U.S. Supreme Court in 2003 had overturned state bans on private consensual sexual relations between same-sex couples and the same day on which the same Supreme Court held in 2013 that the United States government must recognize same-sex marriages validly performed in the couples’ states of residence, the Supreme Court held that the well-established fundamental constitutional right to marry includes all couples, whether same- or different-sex. The ruling came in cases from four states consolidated in Obergefell v. Hodges, 576 U.S. ___ (2015) (my Tennessee companion case was Tanco v. Haslam), and ended the remaining discriminatory bans on same-sex marriage around the country, thus establishing “marriage equality” throughout the United States. As the Supreme Court said in the opinion, state marriage statutes are unconstitutional “to the extent they exclude same-sex couples from civil marriage on the same terms and conditions” as different-sex couples.

The victory was huge, far-reaching, and profound—it brought tears of joy, relief, and validation to gay people and their friends all across the country. And while it marked a significant constitutional clarification, it also left much more to do. Yes, people did and should celebrate, but full equality remains an elusive goal. Yes, now same-sex couples, like their non-gay counterparts, have the right to choose whether or not to marry, but in most of the country, they still can be fired for being gay or even simply thought to be gay, they still cannot get marriage licenses or birth certificates for their children that reflect that they are not “husband and wife” or “mother and father,” they still may not be afforded the “marital presumptions” routinely allowed to different-sex couples who have children born into their marriages, and they still are regularly victimized by anti-gay hatred and bullying, as the world saw in the June 2016 Orlando tragedy.

We now have marriage equality throughout the United States—but no federal law prohibiting employment discrimination based on actual or perceived sexual orientation or gender identity, meaning a gay couple can get legally married on a Friday but, in most states, then get fired on Monday because of that marriage, with no legal recourse. Only 20 states have laws prohibiting employment discrimination based on real or perceived sexual orientation and on gender identity (meaning people can be fired with impunity simply because they do not identify with their birth gender or because they are gender nonconforming in their choice of clothing or appearance).

And, in many, many states, while same-sex couples may now choose to get legally married, their marriage license will still identify one of them as “husband” and one as “wife,” even though both are men or both are women. In addition, when those married couples have children, in many states the birth certificates for those children will list a “mother” and a “father,” even though the child has two moms or two dads. Not to correct these forms so as to properly and respectfully treat same-sex married couples in the same way that different-sex couples are treated is inconsistent with Obergefell/Tanco and denies same-sex couples the same “terms and conditions” of marriage—but continues all over the country.

Furthermore, while different-sex couples can assume application of states laws giving a presumption of parentage to both marital partners when they have a child after marriage, same-sex couples may not necessarily make that assumption. In most parts of the country, same-sex couples still have to hire lawyers and go to court to obtain a stepparent adoption or other enforceable orders establishing parentage for the non-biological or nonlegal parent of the child they lovingly decided to have together.

Similarly, our now happily married gay couple can still find that their transgender or gay/lesbian child is subjected to bullying, harassment, and even physical violence, sometimes allowed to happen without repercussions by schools, businesses, and others. We still live in a culture in the United States where it remains acceptable in many places to make anti-gay jokes, to use pejorative and hurtful words to describe LGBT people, and to make threats to the safety and well-being of LGBT people on the Internet or even at presidential candidate forums. It is still commonplace in the United States for some people to be more concerned about a transgender person using the bathroom next to them than about a terrorist being able to buy military assault weapons and kill scores of innocent people, gay and non-gay.

Marriage equality throughout the country has changed the game—no doubt about it. But the fight for equality for the LGBT community, like the fight for racial justice, is not won with one—or even three—major Supreme Court rulings. Rules, regulations, forms—not to mention hearts and minds—still have to be changed, updated, redefined. Significant progress has been made, and all the brave plaintiffs who made it possible should be congratulated—after which, we still need to roll up our sleeves and finish the job.

Family Law Changes after Obergefell

By Elizabeth A. Johnson and Scott N. Friedman

The June 2015 U.S. Supreme Court decision Obergefell v. Hodges, 576 U.S. ___ (2015), requires all states to recognize marriage between two same-sex partners. However, many questions are left unaddressed and vary from state to state, depending on the laws enacted in each state pre-Obergefell. What is clear is that establishing marriage equality has not solved the family law challenges facing LGBT couples. Some of the areas still lacking clarity and consistency across the country include determining the length of a couple’s marriage, custody of children born prior to or outside the marriage, and tax filing status.

Length of marriage. The duration of the marriage becomes an issue for same-sex individuals desiring to end their marriage. The length of a couple’s marriage impacts the amount and duration of spousal support, eligibility to claim Social Security benefits as a spouse, division of retirement benefits accrued during the marriage, and property division (including whether property is marital or separate).

As the laws across our country evolved over the past decade, some same-sex couples traveled to other states to avail themselves of the changing laws and entered into civil unions, domestic partnerships, or marriages (even if their state of residency did not recognize these solemnizations of the couples’ relationship). Now, when one of these couples wishes to terminate a marriage, the length of marriage may not be readily apparent. For many same-sex couples, their “official” marriage date may have occurred following Obergefell, but a closer examination of the facts is necessary to determine if the couple entered into a civil union or domestic partnership or had a wedding ceremony or common law marriage years before the “official” marriage.

To further complicate matters, family law practitioners also must consider whether either spouse was involved in a civil union, domestic partnership, or common law marriage with a former partner. These unions, which are now recognized as valid marriages in some states, may not have been properly terminated (because they were not valid marriages at the time). In assisting same-sex couples with the termination of their marriages, the following questions should be considered:

  • When did the couple begin their relationship?
  • Have they jointly purchased property, or held joint bank accounts, investments, etc.?
  • Did they enter into a domestic partnership (where and when)?
  • Did they have a civil union ceremony (where and when)?
  • Did they have a wedding ceremony (where and when)?
  • Did they reside together in a state that recognizes common law marriages (and do they meet the required state standard)?
  • Was either party involved in a prior relationship (and was that solemnized by a domestic partnership agreement or civil union, and if so, was that marriage terminated)?
  • Do the parties need to take steps to dissolve the prior relationships in those other states, or does their state have laws that allow their home state to take jurisdiction to dissolve former domestic partnerships?
  • Did the parties have a valid prenuptial agreement detailing separate or marital property?

Finally, the above considerations apply to couples who are married. Unmarried same-sex partners who want to end their relationship should seek other options such as alternative dispute resolution, custody litigation, and civil litigation (for partition actions), as necessary.

Parentage and custody. After Obergefell, children born to married, same-sex couples have two legally recognized parents. However, the decision does not create a recognized parent-child relationship for children born to unmarried same-sex couples or for children born prior to the marriage.

Many states have a presumption that a child born during the marriage has two “legal custodians.” The significance of the legal custodian is that he or she can make decisions and take action about the care and welfare of the child, including seeking medical care, obtaining health insurance, enrolling the child in school, and making decisions about extracurricular activities and religious upbringing. However, in most states, children born outside marriage (heterosexual or otherwise) have only one legal custodian (their biological mother). The heterosexual father or other parent without a biological tie to the child is essentially a legal stranger to the child. This means that if the sole legal custodian dies, the child could be taken away from the other parent, unless steps have been taken to establish a parental relationship (e.g., DNA testing, adoption, or entering into a custodial agreement).

Unfortunately, this creates injustice for children in these families as the person that they recognize as a parent might have no legal relationship to them and lack the ability to make significant decisions on their behalf. However, a growing number of courts across the country recognize a “de facto,” “psychological,” or “equitable” parent and allocate rights to a parent without biological ties to the child.

Until the laws catch up with our changing society, there are ways to navigate the complex custody system in order to provide greater stability for the children in unmarried LGBT families. Some of these means include:

  • adoption (traditional, but where the biological parent maintains custody, or stepparent);
  • parenting agreements (which may not grant legal custody but set forth an intent to co-parent and that the biological parent is releasing a portion of his/her legal rights to the other parent); and
  • parenting (custody) determinations (a judicial order from a local court granting custody and decision making to the non-biological parent).

Tax filing status. The Internal Revenue Service currently does not permit the filing of joint tax returns by unmarried same-sex couples, including same-sex couples who have entered into a civil union or registered domestic partnership but not a marriage. This means unmarried same-sex couples will need to file separate tax returns. For unmarried same-sex couples with children, only the biological parent can claim the child as a dependent.

Advice for lawyers. Attorneys handling these areas of law should familiarize themselves with their state laws and any recent amendments as this area of law continues to change. For additional state-specific resources, consult the National Center for Lesbian Rights (nclrights.org) or Lambda Legal (lambdalegal.org).

Social Security, Medicare, and Incapacity Planning

By Cynthia L. Barrett

Now that same-sex marriage is celebrated throughout the United States following the ruling in Obergefell v. Hodges, 576 U.S. ___ (2015), can you simply advise lesbian, gay, bisexual, and transgender (LGBT) single or married clients as you do all others?

No.

Unfortunately, the past is always with us in estate planning, and LGBT clients have a past you need to explore and deal with creatively. Often, they rely on a “family of choice” that supplements or replaces their biological family as backups and beneficiaries. The LGBT client needs counseling on whether marriage is a good idea, how spousal benefits in federal Social Security and Medicare programs work, and special areas of concern regarding incapacity planning.

Major legal issues for LGBT clients. Lawyers working in the area of estate planning must give special attention to issues particular to LGBT clients.

  1. Multiple status choices: Status options include not only marriage, but also registered domestic partners, reciprocal beneficiaries, and civil unions.
  2. Parentage issues: These issues can be critical for minor and survivor benefits (such as Social Security and military dependent benefits), including special needs planning for disabled adult children.
  3. Interstate moves: LGBT individuals and couples moving from state to state need advice about the validity of a marriage, recognition of a lesser status in the new state, and lesser status conversions to marriage.
  4. Inheritance and survivor rights: LGBT clients need counseling about state law preference and inheritance protection for a spouse, survivor rights in workers’ compensation and pensions, social security spousal benefits, Medicare spousal coverage, Medicare trans treatment/gender issues, and Medicaid long-term care spousal protections.

I review all these concerns during the first meeting with new clients; this helps me focus on the two or three marriage/benefit/planning developments most important to them.

Social Security retirement benefits for same-sex spouses and children. Social Security has two spousal features in the retirement (Title II) program: a 50 percent spousal income benefit and a surviving spouse income benefit. Children (both minor and disabled adult) of those receiving retirement benefits also receive a check.

Since 2015 the Social Security Administration (SSA) has recognized all same-sex marriages; prior to that time, recognition was spotty (based on the applicant’s place of marriage and domicile).

As Social Security rolled out spousal benefits for same-sex marriages since the 2013 decision in United States v. Windsor, 570 U.S. ___ (2013), the agency defined “marriage” to include same-sex “non-marital legal relationships” (NMLRs) that provided intestate succession rights. This NMLR recognition by SSA continues but is spotty—and whether an NMLR partner gets spousal benefits is based on domicile and state law.

I have developed a handout, LGBT Social Security Basics, which describes Social Security spousal benefit options and issues affections LGBT couples. I use this handout in all my LGBT community presentations and also give it to my LGBT clients during consultations. (The handout is available as a PDF at tinyurl.com/j4fnj2l; please feel free to use it with clients in your own practice.)

Medicare benefits and LGBT clients. The federal Medicare program provides health coverage for those older than age 65 and disabled citizens and legal residents. Since the 2013 decision in Windsor, Medicare improved claims handling, eligibility rules, and coverage for transgender individuals and extended civil rights protections and spousal benefits to those in same-sex marriages.

I have developed a handout, LGBT Medicare Basics, which describes these Medicare changes and how they affect LGBT couples. I use this handout in all my LGBT community presentations and also give it to my older LGBT clients during consultations. (The handout is available as a PDF at tinyurl.com/gw7lqv2; again, please feel free to use it with clients in your own practice.)

Incapacity planning. If an LGBT client’s capacity declines, he or she will need fiduciaries sensitive to LGBT issues. What pronoun will be used at the hospital? Will hospital or care center staff disrespect or demean the ill lesbian or gay man or trans individual? Has the LGBT client nominated the desired backup as guardian and completed a financial power of attorney and medical directive? Will biological family members seek control of the incapacitated client and cut off contact with the family of choice?

Financial management for a declining LGBT client can be fraught if he or she has been sharing a household with an unmarried partner. If the client and partner lack powers of attorney and medical directives, control battles may ensue. The biological family and/or adult protective services might view the unmarried partner as an abuser and seek to exclude him or her from decisions and the household.

Younger LGBT couples can now consider marriage as an option to gain automatic state law preference for incapacity decision making, rights to mutual support, and inheritance protection. Some older LGBT couples have embraced marriage and sought its protection immediately; other older LGBT clients have resisted marriage because it requires “coming out” openly to government and to their families.

Tax Law and Obergefell

By Patricia A. Cain

Tax law became somewhat simplified for same-sex couples on June 26, 2013, the date of the opinion in United States v. Windsor, 570 U.S. ___ (2013). It became even more simplified on June 26, 2015, the date of the decision in Obergefell v. Hodges, 576 U.S. ___ (2015). After Windsor, the federal government announced that all validly married same-sex couples, whether or not living in a state recognizing same-sex marriage, would have to file federal tax returns as married. (See Rev. Rul. 2013-17.) Windsor caused a certain amount of complexity for married couples living in non-recognition states, most of which required such couples to file as single, despite strong state statutes that generally require taxpayers to file their state tax returns on the same basis as they file their federal returns. (For more, see tinyurl.com/j2f9pra.) This requirement resulted in couples having to complete five separate tax returns: First they would file a true federal return as married, whether jointly or married filing separately. Then each spouse would have to fill out a “mock” federal return as though single, and that return would serve as the basis for filing a true state return as single. Post-Obergefell, this burden has been lifted.

Retroactivity. Obergefell is a constitutional decision, declaring that state bans on same-sex marriage are unconstitutional. As a general rule, when a court strikes down a law as unconstitutional, the court’s ruling must be given retroactive effect. Application of this rule should mean that marriages entered into before June 26, 2015, in a marriage-equality state should be recognized by a non-recognition state as of the date the marriage was entered into. The retroactivity issue was litigated in a same-sex divorce case in Maine (Kinney v. Busch, Docket No. KEN-14-456). The question was whether or not the marriage was valid under Maine law as of 2008, the date when the couple married in Massachusetts, or only as of 2012, the date when the Maine legislation recognizing marriage became effective. The length of the marriage was necessary to determine the amount of marital property to be distributed at the time of divorce. The trial court ruled that, under Obergefell, the marriage was valid as of 2008. When asked to intervene and clarify this legal issue, the Maine Supreme Judicial Court refused, explaining that the requirement that Obergefell be applied retroactively was quite clear and therefore there was no basis for the court to intervene in the case. (For more, see tinyurl.com/jae4vaj.)

Tax consequences of retroactivity. Any couple who was prevented from filing as married on a state income tax return should have the right to amend that return so long as the year is still open under any applicable statute of limitations. A number of state revenue departments have posted notices clarifying that such couples are free to amend. (See, e.g., tinyurl.com/hxndh5w.)

On the other hand, some states dragged their feet. Kansas was one such state. Before Obergefell, the Kansas Department of Revenue had issued Notice 13-18 informing same-sex couples that they would have to file as single taxpayers at the state level. After Obergefell was handed down, the department did remove Notice 13-18 from its web page. But validly married same-sex couples still experienced resistance from the department. Some of these couples had filed joint returns for prior years, asserting that the Kansas law refusing to recognize their marriages was unconstitutional. The department had refused to process these returns as valid joint returns before Obergefell and continued to do so after Obergefell. A federal district court issued a declaratory judgment in August 2015 (Marie v. Mosier, 122 F.Supp.3d 1085 (D. Kan. 2015)) stating that the failure to process the joint returns submitted by same-sex couples violated the federal constitution. And then, in July 2016, the same court finally issued a permanent injunction (Marie v. Mosier, 2016 WL 3951744 (D. Kan. 2016)) ordering several state agencies, including the Department of Revenue, to comply with the ruling in Obergefell and fully to recognize married same-sex couples as married.

Should such couples amend their state returns? It depends. At the federal level, most practitioners are aware that filing jointly can sometimes produce a bonus (e.g., if only one spouse has income) and sometimes produce a penalty (e.g., if both spouses have fairly equal amounts of income). At the state level, tax rates rarely produce significant marriage bonuses or penalties. Therefore, that would not be a reason to amend. However, if one working spouse was covering the other spouse on an employer health benefits plan, reporting as married will make a more substantial difference. Non-recognition states pre-Obergefell taxed to the employee the fair market value of the health coverage provided to the employee’s spouse. Applying Obergefell retroactively, the employee can amend the return, subtracting the value of that health coverage from taxable income. (See I.R.C. §§105, 106.)

Same-sex married couples who reside in community property states may experience an additional tax benefit from the retroactive application of Obergefell. Assume a same-sex couple living in Texas goes to California to marry in 2008. Even though Texas did not recognize the marriage in 2008, retroactivity means that any property acquired by the couple during the marriage is presumptively community property, even though it might not be titled as such. Upon the death of one spouse, the property would enjoy a double step up in basis under Internal Revenue Code §1014.

Conclusion. Obergefell greatly simplified the rules for reporting taxable income for couples who had been living in non-recognition states. Furthermore, the retroactive application of Obergefell can provide such couples with some important tax benefits.

Estate Planning for LGBT Clients in a Post-Obergefell World

By Joan M. Burda

Some lawyers question whether there are differences in estate planning for gay and lesbian clients versus heterosexual couples. LGBT clients deal with issues that are not faced by heterosexual clients. The U.S. Supreme Court decision in Obergefell v. Hodges, 576 U.S. ___ (2015), only resolved the issue of marriage equality. Many issues continue to challenge LGBT clients, married or not. This article will address some of them.

While wills, trusts, advance directives, general durable powers of attorney, and Health Insurance Portability and Accountability Act (HIPAA) authorizations are the foundation of all comprehensive estate plans, more is needed when working with LGBT clients.

Other relationships. Many LGBT clients entered into marriages, civil unions, or registered domestic partnerships before the Obergefell decision. Some believe those formal relationships “didn’t count” (until a few years ago, most states did not recognize same-sex relationships), and many clients failed to end those relationships formally with a court order. Some clients may be in legally recognized relationships with past partners and not know it.

Lawyers need to ask clients about earlier relationships and whether those relationships were formal civil unions, registered domestic partnerships, or marriages. Find out if those relationships were formally dissolved in a court proceeding. Often the answer will be “no.” If the answer is “yes,” get a copy of the court order. Find out if the client entered into multiple legally sanctioned relationships with different people. Each of those relationships must be dissolved. Also determine whether one of those previous relationships was with the client’s current partner.

Same-sex marriages entered into before Obergefell are legally binding. Some states automatically upgraded domestic partnerships and civil unions to marriage, and other states recognize these civil unions and domestic partnerships as comparable to marriage.

The client must formally terminate earlier relationships that involve a person different from the current spouse or partner. Ignoring those earlier formal relationships may leave the client’s estate plan susceptible to challenge later on. Cleaning up the client’s legal status regarding past relationships will be part of the initial estate planning process.

LGBT clients with preexisting civil unions or domestic partnerships may discover their current home state does not recognize them and they need to dissolve it in the original state. And, if the client is married to a new person, the preexisting relationship may invalidate the current marriage. Clients often have difficulty understanding how past actions adversely affect their current status.

Children. It is imperative to understand the family issues when creating a comprehensive estate plan. Lawyers representing LGBT clients need to ascertain the legal status of the children in relation to the parents.

The marital presumption may not apply to children born to a same-sex couple during a marriage. The presumption is rebuttable. There is no presumption for children born before the marriage.

Stepparent or second-parent adoption may be the only option to resolve the legal status of the non-biological parent.

Unmarried same-sex couples living in states that do not recognize second-parent adoptions have additional problems. A shared custody agreement may provide some protection to the non-biological parent, but there are no guarantees.

Same-sex couples who used assisted reproductive technology need to produce any contracts they signed and identify the clinic and doctor they used. An important component is discovering ownership of the remaining genetic material and addressing it in the estate plan.

If the children are from an earlier relationship, find out what agreement exists with the former partner. If a known donor is involved, find out if that person retains parental rights or if there is a signed waiver.

Senior LGBT clients. The patchwork quilt nature of marriage recognition before the Obergefell decision caused confusion among married same-sex couples about their eligibility for retirement benefits and Social Security benefits.

Clients who retired before the Obergefell decision may have waived spousal benefits because the plan did not recognize the marriage. Some plans allowed a spousal election. Some plans currently allow LGBT retirees to reverse earlier actions. Some companies are fighting those attempts.

Eligibility for spousal Social Security benefits has created confusion for same-sex couples. A couple must be married for nine months in order to qualify for surviving spouse benefits. Some spouses died before or immediately after the Obergefell decision and may not have qualified for surviving spouse benefits because of the nine-month requirement. The U.S. Social Security Administration (SSA) will consider a couple’s civil union or registered domestic partnership in calculating the length of the marriage.

As part of the estate plan process, lawyers representing LGBT couples, including surviving spouses, need to navigate the SSA benefit eligibility requirements and the various retirement plans governed by the Employee Retirement Income Security Act (ERISA). This type of assistance is rarely necessary with heterosexual couples.

Another SSA issue involves married couples whose marriage was not recognized and where one spouse was receiving Supplemental Security Income (SSI) benefits. SSI benefits are income based. The income of both spouses is used to determine eligibility. Before the Obergefell decision, married same-sex couples were treated as individuals by the SSA. The SSA will not attempt to recoup any overpayments that occurred because the recipient’s marriage was not recognized when payments began.

LGBT seniors also face discrimination in long-term care facilities, including assisted living, as well as state- and city-run senior centers. Same-sex couples may be prevented from sharing rooms in nursing homes because of homophobic staff and administrators.

At the same time, LGBT seniors may be estranged from their families and have difficulty identifying people who can serve as executors, agents under powers of attorney, and caregivers. Lawyers who represent LGBT seniors may need to become more involved with caregiving issues by assisting clients in identifying resources that can assist them.

While lesbian, gay, and bisexual seniors face many issues, transgender seniors are at even greater risk to abuse.

Most states and the federal government do not prohibit discrimination based on sexual orientation and gender identity.

Conclusion. Many states have not revised their statutory language to be gender neutral. That leaves LGBT clients at a distinct disadvantage.

There is more to estate planning for LGBT clients than wills and trusts. Lawyers must understand the client’s personal history in order to provide adequate legal counsel. With LGBT clients, estate planning involves more than the traditional estate documents.

This article is by no means comprehensive and definitive in reciting the legal issues facing LGBT clients and the lawyers serving them. There is a lot going on with LGBT clients in the aftermath of the Obergefell decision, and lawyers marketing to this client base must be cognizant of the myriad issues that need to be addressed. Lawyers can educate themselves by learning from members of the LGBT bar who have more experience in LGBT matters. Not doing so is a recipe for disaster—for the client and the lawyer involved.

Abby R. Rubenfeld is a solo attorney in Nashville, Tennessee, with a general practice that emphasizes family law, LGBT, and other civil rights issues; she is the former legal director of Lambda Legal Defense and former chair of the ABA Section of Civil Rights and Social Justice.

Elizabeth A. Johnson is an associate attorney at Friedman & Mirman Co., LPA, in Columbus, Ohio, focusing on dissolution, stepparent adoptions, third-party custody cases, and mediation.

Scott N. Friedman, an advocate and mediator licensed in Ohio and Florida, is an Ohio State Bar Association Certified Specialist in Family Relations Law; he is a partner with Friedman & Mirman Co., LPA, in Columbus and was 2013–2014 chair of the ABA Family Law Section.

Cynthia L. Barrett is a solo in Portland, Oregon, focusing on elder law and special needs and same-sex couple planning; she is past president of the National Academy of Elder Law Attorneys and received the LGBT Bar Association’s 2016 Leading Practitioner Award.

Patricia A. Cain is a professor of law, Santa Clara University, California.

Joan M. Burda operates a solo practice in Lakewood, Ohio; she is former Editor-in-Chief of GPSolo magazine and is author of Estate Planning for Same-Sex Couples, third edition (ABA, 2015), and Gay, Lesbian, and Transgender Clients: A Lawyer’s Guide (ABA, 2007).