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Thanks to the June 26, 2015 ruling of the U.S. Supreme Court in Obergefell v. Hodges, estate planning for our married LGBT clients is now almost identical to our planning for married heterosexual clients. Therefore, we encourage you to read the general topics on this website which pertain to your areas of interest. However, domestic partners and others who elect not to marry do not benefit from the marriage ruling. And there are a few other matters of special interest to LGBT individuals which we will address here.


Are you sure you are single?

If you have ever been party to a civil union or domestic partnership that ended but was never formally dissolved, you could be married and not even know it! Some states that initially allowed only civil unions or domestic partnerships later enacted laws to permit same sex-marriage. And when doing so, they included a provision that converted to a marriage all then valid civil unions and domestic partnerships entered into in that state. This means that if you were party to a civil union or domestic partnership in such a state, but you didn’t dissolve it when the relationship ended, you need to get a divorce or annulment. If you are deemed to be married, that marriage could:

  • expose you to joint spousal liability for your former life partner’s debts;
  • require you to pay spousal or child support obligations;
  • expose your estate to claims of inheritance by your former life partner;
  • affect your (and his/her) eligibility for Medicaid or VA pension benefits; and
  • subject you to penalties for bigamy.


The good news is, now that Arkansas recognizes your same-sex marriage, an Arkansas court should have jurisdiction to grant that much needed divorce or annulment.

Of course, some people are not partnered, and others will choose to continue to live as life partners rather than getting married. If that describes you, we can create an estate plan that meets your needs – just as we’ve been doing before you had the choice of whether to marry.


Children Born to Lesbian Women

Under Arkansas law, a woman who gives birth to a child is deemed to be the mother, unless otherwise provided by state law or determined by a court prior to filing the birth certificate with the Division of Vital Records of the Department of Health. If the mother was married to a man at the time of either the conception or the birth, or between conception and birth, her husband’s name is to be entered on the birth certificate as the father, absent contradictory affidavits or court determination. In addition, when a married woman gives birth to a child conceived by means of artificial insemination, that child is to be deemed to be the legitimate child of the woman and her husband if the husband consents in writing to the insemination. Interpreted fairly, these statutes should mean that the lesbian spouse of a woman who gives birth to a child, if she consented to the insemination, should be deemed to be the second parent and named on the birth certificate. Although Arkansas statutes have not yet been modified to accomodate a gender neutral reference to a "spouse" rather than "wife" and "husband," the United States Supreme Court ruled on June 26, 2017 that Arkansas statutes on this subject are unconstitutional, and that the Arkansas Department of Health, which issues birth certificates, should list the names of both female spouses on a birth certificate.  Otherwise, same-sex couples will not enjoy "the constellation of benefits" that Arkansas has linked to marriage (as guaranteed by Obergefell).  Still, due to other vagaries in the law, we recommend that even if both spouses are named on the birth certificate, the non-biological parent pursue legal adoption of her wife’s child. A legal adoption is the most certain way to protect the rights of the non-biological parent in Arkansas and throughout the U.S. until the laws of all states are uniform in this area.


Children Born to Gay Men

Arkansas statutes provide that a child born to a surrogate mother by means of artificial insemination will be deemed to be the child of the biological father and “the woman intended to be the mother” if the biological father is married to a woman, or the child of the biological father alone if he is unmarried. Interpreted fairly, this statute should mean that the husband of a man who donated sperm to a surrogate mother, if that husband is intended to be the second parent, should be deemed to be the second parent of the child. However, for birth registration purposes, the name of the surrogate mother will always be listed on the birth certificate. A substitute certificate may be issued upon order of a court, and the original birth certificate will be sealed. Therefore, a court proceeding will likely be necessary in all instances of surrogacy for a gay couple -- as it is for a cisgender couple.


Adoption and/or Guardianship of Children

For the last several years Arkansas courts have permitted individuals in same-sex relationships to adopt a child so long as the court concluded that it was in the best interest of the child. Arkansas courts should now permit a same-sex spouse to legally adopt the children of his or her spouse (the “primary parent”). But this will require the consent of the second parent, if any (which consent should be included in any surrogacy agreement). The adoption will completely sever all legal ties between the child and that second parent. This means that when the second parent dies, the child will have no rights of inheritance from that parent. If a new spouse does not adopt the children of the primary parent, the primary parent, if she or he becomes chronically ill or near death, can appoint someone as a standby guardian for a minor child. That standby guardianship will take effect immediately upon the primary parent’s death or mental incapacity – without earlier surrendering his or her parental rights and without foregoing the inheritance rights of the child from the second parent. This standby guardian could be your same-sex partner or a family member or close friend; the sexual orientation of the person nominated should not be a controlling factor. Rather, the key issue is what is in the best interest of the child.


Visitation Directive

If you are not partnered but are closer to certain friends than to your biological family, or if you elect not to marry but want to be sure your life partner can visit you in the hospital, a simple Visitation Directive can address that. In fact, you can choose who should be considered to be your “family” for health care purposes, whether that’s a life partner, your legal family or close friends. It is quite easy to be sure that your loved ones must always be permitted to visit you in the emergency room, ICU or other restricted area.


Long Term Care Planning: Medicaid and VA Pension Benefits

Both Medicaid and VA Pension benefits are needs-based benefits and the assets of both spouses are counted when determining eligibility; a pre-nuptial agreement will be ignored.  The income of both spouses (and the entire household) is counted by the VA.  Also, subject to a very narrow exception, your remarriage after the death of your veteran spouse will end your right to surviving spouse benefits. So this is one area where marriage can negatively impact your eligibility for benefits. On the other hand, marriage to a veteran can entitle you to surviving spouse benefits. The VA has ruled that a surviving same-sex spouse is entitled to benefits if the couple lived in a state where their marriage was legal either at the time they wed or at the time they file for VA benefits. Therefore, now that same-sex marriage is legal in all 50 states, all surviving spouses should qualify. If you are the surviving spouse of a veteran who died before your marriage was recognized in Arkansas (June 26, 2015) your rights are not as clear.


Employment Benefits

Neither Arkansas law nor federal law offers broad-based protection against discrimination on the basis of sexual orientation or gender identity; however, you may have some protection in your workplace. That is because the U.S. Equal Employment Opportunity Commission (the EEOC) interpreted the sex discrimination provisions in Title VII of the Civil Rights Act of 1964 as prohibiting discrimination on the basis of an employee’s sexual orientation or transgender status.  Therefore, if you are fired from your job for being LGBT you may have recourse if your employer is covered by the EEOC. However, this was the EEOC under the Obama administration; the Trump administration may not interpret the laws the same.  Generally speaking, a private company with 15 or more employees is covered by EEOC regulations. But asserting your rights may require expensive litigation. LGBT employees of the federal government and federal contractors also have some job protection. As of June 26, 2015, if you work for a private employer with 15 or more employees you should be able to add your spouse to your employer-sponsored health insurance. In addition, the Arkansas Attorney General has conceded that, effective as of June 26, 2015, all Arkansas state and local government employers should treat same-sex married couples identically to how opposite-sex couples are treated, including with respect to enrollment in employee benefit programs, such as health insurance.  Consistent with these EEOC decisions, federal courts having jurisdiction in Arkansas specifically ruled that the same-sex spouse of an employee who receives benefits from the Arkansas Teacher Retirement System must enjoy the same benefits as would an opposite-sex spouse, including retirement benefits, family health insurance and family leave. This EEOC ruling should extend to the majority of employers, subject to some exceptions for religious organizations and religiously-affiliated institutions.


Social Security Benefits

Since the June 26, 2015 same-sex marriage decision, same-sex spouses should be treated equally by the Social Security Administration, and be awarded spousal social security benefits. However, spousal survivor’s benefits and a lump sum death benefit will not be awarded unless you have been legally married for at least nine months before your wage earner spouse’s death in most instances. You must have been married at least twelve months prior to applying for benefits in order to be eligible for spousal retirement and disability benefits. If you are divorced, you must have been married for at least 10 years in order to be entitled to spousal social security benefits. These are the same rules that apply to heterosexual married couples except that it is not clear whether you will be given credit for the months you were married before June 26, 2015, when your marriage became valid in Arkansas.


Income Taxes

Same-sex spouses have been required to file as “married” on their federal income tax return since the Windsor decision in 2013 – irrespective of where they live. But you must be married in order to claim the filing status of “married filing jointly”; civil unions and domestic partnerships are not adequate for this purpose. Generally speaking, your filing status is determined as of December 31 of each year; so if you married on December 31, 2014 you will be deemed to have been married for the entire year of 2014. Likewise, if you divorced at any time during 2014 you will be considered divorced for the entire year. Beginning for the tax year 2015 (the tax return due on April 15, 2016), all married persons (including same-sex spouses) must now file both their federal and state income tax returns as “married” – whether as “married filing jointly” or “married filing separately.” The Arkansas Department of Finance and Administration has specifically been ordered to accept joint tax returns filed by same-sex married couples.


Retirement Benefits

Almost all retirement plans offered by an employer include provisions regarding the employee’s spouse. If you work for a private employer who offers a retirement plan that is subject to federal law (such as a 401k, 403b or IRA), your same-sex spouse must be treated just like an opposite-sex spouse. This is true no matter where you live or where your employer is located. This has been the law since June 26, 2013 when the U.S. Supreme Court decided United States v. Windsor. If you or your spouse work for the federal government, your same-sex spouse must be treated just as would an opposite-sex spouse. If your retirement plan is through a state or local government not covered by the spousal protections of federal law, you may not have had any spousal rights before June 26, 2015 but, now that your marriage must be recognized in Arkansas, you have equal rights. As noted above, federal courts having jurisdiction in Arkansas specifically ruled that the same-sex spouse of an employee of the Arkansas Teacher Retirement System must enjoy the same benefits as would an opposite-sex spouse.  The same applies for any state or local government employee.  If you or your spouse works for a church or other religious organization, that employer could still be required to provide benefits to your same-sex spouse if its retirement plan is governed by federal law or it is subject to a federal law which prohibits discrimination on the basis of sex (due to interpretations by the EEOC). Other issues will involve how long you must be married before your spouse retires or dies, or if your spouse retired or died before your marriage was recognized in Arkansas.


LGBT Discrimination

Although the right to marry your same-sex partner is now guaranteed, neither Arkansas law nor federal law offers broad-based protection against discrimination on the basis of sexual orientation or gender identity. This means that in many states, including Arkansas, you can be evicted from your home or refused service in places of public accommodation (restaurants, hotels, retail stores, movie theaters, etc.). Simply stated, neither sexual orientation nor gender identity is a protected class. Therefore, any claim based on such discriminatory practices will be an uphill battle.

On July 23, 2015, a bill referred to as “The Equality Act” was introduced in both the U.S. House and Senate.  A similar bill was introduced again on May 2, 2017.  If passed, it will add “sexual orientation” and “gender identity” to the Civil Rights Act of 1964 and thereby explicitly create protections against discrimination on those grounds with respect to employment, housing, public accommodation, credit, education, federal funding and jury service. Currently, the Civil Rights Act considers race, color, religion, sex and national origin to be protected classes. We will monitor the progress of The Equality Act and update our website when we learn of material progress or setbacks.  It has been in committee since June of this year with no action taken.


Name change


Gender change

As noted above, we ask that you visit the Practice Area in which you’re interested irrespective of your sexual orientation. That will give you more helpful information and explain our procedures in the various areas in which we focus our law practice.


Whenever you are ready, you may REQUEST A CONSULTATION.


Photo of lesbian couple with child and dog



Thank you for visiting our website.

The attorneys of Ball Corley PLLC proudly serve the entire State of Arkansas with respect to:  Estate Planning (wills, trusts, powers of attorney, HIPAA authorizations, living wills and visitation directives); Elder Law (Medicaid, veterans administration pension and long term care planning); Probate; Trust and Estate Administration; Guardianships; Premarital Agreements; LGBT Laws; and Real Estate Transactions.

Notice and Disclaimer: This Ball Corley PLLC website is intended only to give general information which we believe may be helpful; it is not intended to be advertising or a solicitation, or to provide legal advice. If our website includes any links to other sites they are for information only and should not be interpreted as an endorsement. Although we try to keep the information on our website current it may not always reflect the latest laws, decisions or dollar amounts. And, the general rules provided may not apply to your specific situation; for every general rule there are multiple exceptions to that rule. Therefore, we strongly recommend that you consult with us or another qualified licensed attorney rather than taking any action in reliance on any information contained in this website. Neither your visit to our website, nor your phone call or email to our office, will create an attorney-client relationship with Ball Corley PLLC or its attorneys; such a relationship can be established only by our written agreement to represent you.

If you contact us via phone or email, please do not disclose any information which you deem to be confidential. Only after we have agreed to represent you are we governed by Rule 1.6 of the Arkansas Rules of Professional Conduct regarding Confidentiality of Information. That Rule requires that we hold in strict confidence any and all confidential information revealed to us by our clients, subject only to certain narrow exceptions (such as to confer with your CPA, investment advisor or another professional). We are also bound by Rule 1.18 and other Rules of Professional Conduct.

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