Relationship Recognition & Protection

   2013 was a big year for the Lesbian, Gay, Bisexual, and Transgender community. With marriage victories sweeping the country, the lives of many loving and committed same- sex couples have been enriched by these significant strides towards equality. While South Carolina still does not legally recognize same-sex marriage within its borders, same-sex couples now, more than ever, have greater access to options that can help provide a sense of security for you and your family.  As we continue to work across our state to make equality for all a reality, SC Equality is determined to make sure that you and your family Know Your Rights.

Questions to Ask a Lawyer

   We recommend that you and your loved ones take the information and questions contained on this page and seek the input of a lawyer in South Carolina who practices estate planning to safeguard your rights. Click here to download the fact sheet.

Medical Decision-Making 

  • How can I best protect the wishes of my partner in the event of a health-related emergency?
    There are options that exist for couples who would like to honor the wishes of their partner when it comes to important life-making decisions. A Healthcare Power of Attorney and living wills are legal documents that are designed to honor the wishes of a person who cannot speak for themselves regarding health care decisions. Without these documents, it may be difficult for same-sex couples to make the already tough decisions on behalf of their partner due to a lack of legal recognition. 
  • Health Care Power of Attorney   (sample form)
    • Allows you to give the person of your choosing the right to make medical decisions for you if are no longer able to do so.
    • A statutory form exists in South Carolina (recommended for use as it is the one healthcare providers are most familiar with)
    • Can include provisions for funeral planning authority
    • The South Carolina form include a "living will" portion, which allows for you provide guidance regarding on life-sustaining treatment.
  • Living Will
    • A directive that provides instructions directly to the healthcare provider regarding end of life decisions
    • A statutory form exists in South Carolina (recommended for use as it is the one healthcare providers are most familiar with)
    • Known as a Declaration for the Desire of a Natural Death in South Carolina
    • Many forms include a "living will" portion, which allows for you make decisions on life-sustaining treatment, such as resuscitation orders.

Preparing for the Unexpected 

  • How can my partner and I best protect our financial assets if one of us dies or becomes incapacitated? 
   An estate attorney can provide you and your partner legal resources that serve some of the needs of your relationship. For example, a durable power of attorney allows you to give permission to your partner to make financial decisions on your behalf. A Last Will and Testament is necessary to ensure that your last wishes are honored in terms of who gets what.
  •  Wills & Titling
    • In South Carolina, same-sex couples are not entitled to the property of their partner without proper documentation of the decedent’s last wishes. 
    • There are several options available to hold assets jointly including; joint property ownership with rights of survivorship and tenants in common.
    • Couples should consult a lawyer in order to determine the best options 
  • Durable Power of Attorney (Financial)
    • Allows you to give the person of your choosing the right to make financial decisions on your behalf; this is especially important if you become incapacitated.
    • This will allow your selected agent the ability to pay bills, manage bank accounts, make important insurance decisions, and collect benefits on your behalf; such as Medicare, Social Security to name a few
  • Beneficiary Designation
    • An option that may exist to allow your assets to be distributed in the event of your death to the person of your choosing
    • Beneficiary examples include; retirement plans, life insurance, and Transfer on Death (TOD) accounts
  • Cohabitation Agreement
    • Allows couples who plan to live together an opportunity to agree on how bills will be paid and responsibilities will be shared while they live together.
    • In the event that the relationship ends, this agreement may help prevent confusion in regards to who gets what.

Structuring Finances

  • Can my partner and I have structure regarding our financial assets during our relationship and provide guidance for if it ends?

    A family law lawyer with experience in same-sex couple’s issues can provide you and your partner to resources to serve some of the needs of your relationship. For example, the purchase and financing of a home is a significant investment that both partners deserve to have protection regarding.  At present, opposite sex married couples go to Family Court for a supervised means of dividing the assets of the relationship.  For Same Sex couples, a Partnership Agreement can address how to handle finances during the relationship as well as providing a structure to help dissolve the jointly owned assets.


Parental Recognition & Protections 

  • What legal protections are my partner and I entitled to when it comes to parenting rights?
    According to data from the Movement Advancement Project, 1 in 4 of South Carolina's same-sex couples are raising children -- that is a lot of mothers, fathers, and children who face daily uncertainty. While state's laws simply do not address same-sex couples, there are steps that can be taken to maximize your rights as parents.
  • Guardianship Agreement
    • Document allows the biological parent to clearly indicate the caregiver of choice in the event that something happens. 
    • May help prevent conflict among family members
    • Gives guidance to the court in the event of a family conflict
  • Co-parenting Agreement
    • Allows couples to share parental responsibilities of a child when legal adoption is not available.
    • Can include:
      • Consent for medical care of child
      • Proposed Custody Agreement in the event of separation  

Federal Marriage Recognition 

  • My partner and I were legally married in another state but live in South Carolina where our marriage is not legally recognized by the state; what benefits are we entitled to, if any?
    If you and your partner are legally married but currently reside in South Carolina, understanding your rights in regards to your entitled marriage benefits is confusing, ever changing, and at times, incredibly overwhelming. Just recently the US Justice Department announced that all marriages, regardless of genders and regardless of how your state treats your marriage, will receive full recognition from the federal judicial system. Translation: the government is on your side. As these issues continue everyday to work themselves out, it is important that you and your partner know what you are entitled to. Here are just a few:
  • Currently your marriage will be considered by:

     

    The Know Your Rights campaign is intended to provide general information regarding major areas of state and federal marriage-based rights and protections based on how the various state and federal agencies have administered benefits.  It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship.  Past practice is no guarantee of future developments.  While laws and legal procedure are subject to frequent change and differing interpretations in the ordinary course, this is even more true now as the federal government dismantles DOMA and extends federal protections to same-sex couples.  SC Equality cannot ensure the information is current or be responsible for any use to which it is put.

    No tax advice is intended, and nothing therein should be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code. Consult a professional tax preparer with questions about state and federal taxes.

    Contact a qualified attorney in South Carolin for legal advice about your particular situation.