Money Talks | March 2016

By Melissa Myers and Michael J. Tucker

Melissa Myers: So, there are gay men and lesbians who have gone through the legal adoption process to adopt their domestic partners? That’s a thing?

Michael J. Tucker: Yes, it’s a rather old-fashioned strategy.

Myers: What do you mean?

Tucker: Well, back when homosexuality was a love that dare not speak its name, adopting your partner was a clever legal strategy that some (mostly men, mostly well-heeled, mostly in eastern states) would use to create a legal relationship between themselves and their domestic partners.

Myers: Ingenious! Of course there was no domestic partner registry back then, much less any legal same-sex marriage.

Tucker: At least in my experience, even in the relatively closeted culture of that era, one of the attractive features to some clients of this strategy was that it “legitimized” their relationship, which, in many cases, they otherwise kept quiet about.

Myers:You can see how creating a legal parent-child relationship would circumvent a lot of problems for such couples, regarding inheritance, medical care decision-making, and the like.

Tucker: Notably, it was anticipated that such adoptions would be a strong defense against will contests brought by the relatives of a deceased adoptive parent.

Myers:So now that marriage equality has arrived, some couples who went through this type of adoption might want to get married, and there’s a bit of a problem.

Tucker: Right. Various state laws prevent folks from marrying their relatives.

Myers: In about half the states, folks can’t legally marry their legally adopted child or adoptive parent.

Tucker: Only half?

Myers:Let’s not go there.

Tucker: Anyway, your point is well taken. If a couple has taken the step (typically decades ago) to create a legally binding parent-child relationship between them, then in order to get married to one another they’ll first need to annul that adoption decree.

Myers: Would they have to go back to the court, back in Pennsylvania or wherever, that originally granted the adoption?

Tucker: Typically, yes.

Myers:So marriage equality doesn’t necessarily unravel everything that needs to be unraveled before certain couples can actually marry.

Tucker: True, and that goes double for folks who were already married – maybe in Massachusetts in 2004 – when marriages first became legal under their local law.

Myers: Makes sense. If someone is already married, even though their marriage wasn’t legally recognized federally or in other states until several years later, they’ll still need to dissolve that marriage before getting married again now, whether to a spouse of the same sex or of the opposite sex.

Tucker: A few of our clients have been blindsided by not recognizing that certain former marriages are now mighty real, and that they need to get a divorce before they can remarry.

Myers:Some states, most notably Utah, have been vigorously prosecuting what they regard as bigamous marriages.

Tucker: That’s technically the legal situation when someone who is still married (even in a same-sex marriage that wasn’t previously valid in all states) gets remarried to someone else.

Myers: So back to the adult adoption cases: this isn’t something that we will run across in Arizona very often, I take it.

Tucker: Almost never. I’ve only seen it with clients who came from New England, New York or Pennsylvania.

Myers: It was an ingenious legal and financial solution, and its usefulness has now been eclipsed by history.

Tucker: Who could have foretold that such dramatic changes would occur in our lifetime?

Myers:It goes to show that careful legal and financial planning never goes out of style.

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