Wednesday, April 15, 2009

The extraordinary new Colorado law

When a legislature blinks on same-sex marriage, we hear about it in the news everywhere. But the law signed by Colorado's governor last week has garnered little attention, and it has some transformative possibilities that deserve lots and lots of attention. (Thanks to Bilerico's Alex Blaze for highlighting it -- but not a single comment to his post.) Colorado now has a simple form, with a menu of options, that allows any two unmarried people to designate each other as entitled to numerous legal consequences usually reserved to married couples.

The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.

Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.

In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.

Colorado has now come close to that model.

I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.

So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)

You'll be hearing more from me about the Colorado law soon.


Anonymous said...

Yeah, that's exactly a step in the good direction.

Anonymous said...

This indeed seems like a good thing. One question, though: You say, "Sign this form and you don't need a will or a health care power of attorney." What happens if you end up in the hospital in another state? Would they honor this?

Nancy Polikoff said...

Good question. The situation would be no worse than a married same-sex couple relying on an out of state marriage, and probably is better, since this status doesn't have anything to do with marriage and the form specifically refers to health care decisionmaking. In earlier posts ( I refer to the need for advance health care directive registries. The new Colorado law doesn't change that.

Anonymous said...

Fabulous! While we at Onely think everyone should have a right to marry, we would prefer to dismantle entirely from the whole idea of marriage-as-status-and-panacaea. Colorado has taken us closer in that more-progressive direction than Vermont and Massachusetts have--ironic from a state that, as you said, probably wouldn't be comfortable sanctioning same-sex marriage.


bluewillow said...

What are the negative cosequences? Does one of the parties also adopt the other's debt & have their credit problems?