From Chicago Tribune on January 18 2010: "If Howard Wax and Robert Pooley Jr. were a heterosexual couple, they could’ve gone to their nearest Cook County clerk’s office, paid $40 for a marriage license and been wed.
That would have provided them an array of legal protections – the right to make medical decisions for one another, the ability for one to inherit the other’s property.
Instead, the couple paid $10,000 for an attorney to help them roughly simulate – using wills, trusts and powers of attorney – the protections that marriage affords. It was a price the men, parents of 3-year-old twins, were willing to pay for peace of mind, though they admit it’s far from perfect.
“I feel at least like we’re secure now,” said Wax, who has been with Pooley for nine years. “It’s not perfect, but we’re OK.”
Across the country, there has been a surge in gay and lesbian couples making such arrangements to protect themselves in states like Illinois that do not recognize same-sex marriage or civil unions. As the nation continues to fiercely debate gay marriage, some proponents cite the added financial burden in casting it as not just a civil rights issue but an issue of economic fairness.
“Gay couples have to go to an attorney, have a will drawn up, get durable powers of attorney. Not only is it a financial expense, but many of those things can be challenged by people’s biological families,” said Rick Garcia, political director for the gay and lesbian rights group Equality Illinois. “A heterosexual couple that barely knows each other can walk into the county clerk’s office, get a license, get married by an administrative law judge, and all their rights and all their protections are there.”
It can be a difficult reality for same-sex couples to face.
Melissa Walker and Erin Ferguson had a wedding ceremony in Chicago in 2008. A couple of friends who are attorneys offered their services as a gift, helping the couple prepare powers of attorney and wills.
Now Walker is eight months pregnant and said it will cost about $2,000 for Ferguson to adopt the child, along with additional legal costs to make sure their parental rights are protected.
“Erin and I are spending thousands of dollars out of our savings account,” Walker said. “How does it benefit anyone when our child is going to come into this world with a less economically sound family?”
Most estate attorneys advise straight couples to have safeguards like wills and powers of attorney, but they aren’t absolutely necessary.
“There are protections under the law that would help a heterosexual couple if they didn’t have those protections in place,” said Christopher Clark, senior staff attorney in the Midwest Regional Office of Lambda Legal, a national gay and lesbian civil rights organization. “A same-sex couple, without these steps, has no legal protection.”
Even with carefully laid-out legal plans, Clark said same-sex couples still have cause for concern: “We’ve had horrible situations where someone winds up in the emergency room in critical condition or even dying, and the person’s partner is not allowed access to them, regardless of the documents.”And there are other rights that come with marriage that same-sex couples have no way of accessing. They miss out on all manner of federal tax benefits, and the federal Defense of Marriage Act – signed into law by President Bill Clinton – makes it impossible for a surviving partner to receive any of their deceased partner’s monthly Social Security payout. That money simply goes back to the federal government.
In Illinois, if one person in a same-sex relationship is covered by his or her partner’s work health insurance, the premium that company pays is treated as taxable income for the partner who works there. Married heterosexuals don’t face such a tax.
“You can never create – using private contracts – all the same benefits and protections people have by being married,” said Ray Koenig III, a Chicago attorney. “You can try hard, and you can spend a lot of money. But you’ll never get there.”
A recent Pew Research Center poll found that a majority of the country continues to oppose gay marriage, 53 percent, while nearly 60 percent of Americans favor letting gay and lesbian couples enter into civil unions. Garcia, of Equality Illinois, said a civil unions bill that would give same-sex couples every benefit the state conveys to married couples will again be considered this year by the Illinois legislature.
Couples like Stephen Lev and Chad Feltrin, however, aren’t waiting around for a bill to pass. Feltrin proposed to Lev, on bended knee in their Andersonville apartment, in April, but they decided they won’t have a marriage ceremony unless same-sex marriage is legalized in Illinois.
“I guess it’s our way of protesting,” Lev said. “I think it’s unfair we’re forced to jump through hoops others don’t have to jump through just to get the same rights.”
Those hoops for Lev and Feltrin included four powers of attorney (two each), two privacy waivers allowing access to the other’s medical records, two wills and a trust for the property they own together.
Wax and Pooley had their children with a surrogate mother in 2006, and it was around that time they realized the importance of estate planning. Kenneth Bloom, their attorney, set the couple up with two revocable trusts to ensure each man’s assets can transfer to the surviving partner and their children, two powers of attorney for each, a will for each and a separate trust for Pooley’s life insurance plan.
“It’s fascinating to do this work for same-sex couples, because there are always very unique circumstances that have to be planned for,” Bloom said. “Same-sex couples are becoming smarter about these legal matters and it’s becoming more common for them to say, ‘OK, we have no legal rights and we’d better do some estate planning.’ ”
Wax said he’s not bitter about the steps he and Pooley have had to take. He thinks great strides have been made in gay civil rights and believes marriage rights for same-sex couples will come eventually, whether in the form of fully legalized marriage or civil unions.
“I don’t care if they call it a tostada,” Pooley said. “I just want the legal issues to be settled out. I don’t like feeling like we’re missing out or being treated differently.”