Safeguarding Yourself, Your Family, and Your Legacy: A Post-Election Guide for LGBTQ+ Mainers

By Evi (Englert) Woodlinn & Carli Labrecque

As a result of recent events, many clients and LGBTQ+ community members are seeking guidance on how to protect themselves, their families, and their assets.  This article provides a comprehensive list of recommendations to help you navigate the uncertainty and mitigate risks.  From safeguarding your parentage rights to ensuring your estate planning and identification documents are in order, these steps are designed to offer potential action items for you to consider in protecting you and your loved ones. Please note that this publication may be continuously updated, so be sure to re-visit it regularly for the latest advice.

Gender Marker and Name Changes

• Trans and nonbinary Mainers, and parents of trans and nonbinary youth, can prepare by updating their identity documents.
• As Maine residents, you have protections under state law for gender marker and/or name changes on your Maine state ID, driver’s license, and birth certificate.  These processes are governed by state law, not federal law.
  • Consider changing your gender marker and name on your Maine birth certificate by submitting the necessary notarized application to the Maine CDC Vital Records Office.
  • Changes on your Maine identification card or driver’s license can be made without a court order or birth certificate change.
• Also consider amending your gender on any of your identification documents that are federally issued, such as your passport and social security card.
  • Currently, gender changes can be made for a passport and social security card without medical documentation or a court order.
  • You do not need a finalized name change in order to update your gender marker.
  • These processes are governed by federal law and could be impacted by a new administration, so consider opting for an expedited passport for faster processing.
• Inform all necessary entities of your name and gender marker change, including but not limited to banks, employer, credit card companies or loan agencies, schools, insurance companies, and healthcare providers.
• In addition to your own identification documents and birth certificate, consider updating your marriage certificate and/or your child’s birth certificate.

Parentage

• To secure a non-genetic or non-gestational parent’s legal parentage, obtain a court judgment through confirmatory or second-parent adoption.  Although in Maine a birth certificate may have your name listed as a parent, this may not suffice as full protection in other states.  An adoption decree is a final and binding confirmation of the parent-child relationship, and should be recognized in every state nationwide.
  • If you used assisted reproduction (such as a gamete donor) and have not yet obtained an adoption decree, do so through Maine’s streamlined confirmatory adoption process.
• Once you receive a decree or judgment, as with any important legal documentation, be sure to keep a certified copy in a safe and accessible place.  We also suggest keeping a scan or picture of it on your phone.  If you are married, also obtain additional certified copies of your marriage certificate to store with your important records.

Estate Planning

• If you haven’t yet, begin the process of estate planning, or amend your estate plan as necessary.  Your estate plan should include wills, advance health care directives, powers of attorney, and guardianship nominations.
  • Review existing estate plans and update them with changes in family composition, ensuring that they reflect your legal status.
  • Ensure that your spouse, partner, or significant other is specifically named, if you wish for them to benefit.  Under Maine law, spouses are automatically entitled to a portion of your estate, if you wish for them not to benefit, you must specifically articulate your wishes.
  • If any individual within your estate plan is trans, nonbinary, or gender non-conforming, ensure that your estate plan reflects that individual’s name and gender accurately. Consider reducing the use of gendered language.
  • Ensure that your beneficiaries are accurately and adequately identified and described, with particular consideration of the nuances of being an LGBTQ+ family.
  • Through an advance health care directive, clarify your wishes regarding medical treatment. This is of particular importance for individuals in domestic partnerships or other long-term relationships, but who are not married, because the same access to information and ability to make medical decisions may be limited. Consider naming an alternate health care agent, if the first individual is unavailable or unable to act on your behalf.
  • Nominate a guardian for any minor children in the event of death or incapacity.
• Be sure to align any language about frozen gametes or embryos in estate planning documentation with any other written forms and/or contracts, such as those with your fertility clinic.
• Ensure that your estate plan covers the continuation of gender affirming care, particularly notable in trusts which allow for distributions, if applicable.
• Confirm and/or update your named beneficiaries on any life insurance or other policies, and bank, investment or retirement accounts.  These qualified beneficiary accounts pass outside of probate to whomever is listed as the beneficiary.

Fertility

• If you have gametes or embryos cryopreserved, ensure that fertility clinic forms are clear as to what shall occur in the event of divorce, separation, incapacity, or death.  If you need a more explicitly written contract or there are nuances to your circumstances not covered by the clinic’s forms, consult with a family formation attorney.

Shareholder Evi (Englert) Woodlinn leads Bernstein Shur’s Family Formation Practice, helping individuals and couples navigate the legal process of building and protecting a family, including through assisted reproductive technology and estate planning. If you need guidance, contact Evi today at eenglert@bernsteinshur.com.

This article was written in collaboration with All Family Legal, PC and others.