So I help people with their finances. Retirement, planning, estate, kids and whatever. And I’ve got one I could use some assistance with from a creative standpoint.
I’ve got a set of four people - two men, two women - who define themselves as polyamorous. Fine by me. Clients are clients.
But they want help finding a way that all of them are considered equal in the eyes of the law in terms of finances. I believe a trust could answer their questions but am not sure. Could a trust - set up by an attorney, I wouldn’t do it - allow for sharing of assets, inheritance, provision for children and such? There’d have to be a provision for someone leaving the trust, too.
It seems to me that either a trust or a partnership of some kind would be the way to go. That way the government, other companies, etc. deal strictly with the artificial person, and the real people involved can make decisions within that framework.
Holy crap! The more I think about it, the more it makes sense to treat the legal side of all marriage or family ties in this way! Then it eliminates a lot of the issues with things like gay marriage, common law marriage, non traditional marriages etc…
When you really get down to it – marriage should be between the spouses involved (and, if that couple chooses, their chosen diety). Not between them and the government. People should be free to engage in whatever sort of personal union they wish, so long as everyone involved is a consenting adult. Of their own volition or with the blessing of whatever religious institution they belong to, it’s none of the governments business.
And people should be allowed to make any sort of financial agreement or living arrangement they wish, again, so long as everyone involved is a consenting adult. So if a couple wants to marry with the Catholic church’s approval, but keep all of their individual belongings privately owned, that should be allowed. And if four people want to enter a financial arrangement where all of them own everything in common, because they’re all in love with each other, that’s fine too. And it’s even fine if they aren’t all in love, but they’re just four dudes who grew up together and wanna keep the party going, or if they’re two separate married couples who are great friends and want to support each other.
Any of those families could create a legal entity representing their “Household”, a fictitious legal person much like a corporation. Obviously if you wanted to get more complicated than whatever government default there was for two people, you’d probably need to hire a lawyer. And there would be all sorts of rules to prevent abuse, and controlling how child custody is handled, etc.
I think some aspects of this can work and others can’t. I’m not sure they can legally all be equal parents. Non-gov retirement stuff is probably doable, but I don’t see how social security could treat them all equally. Others have mentioned trusts just for the money stuff.
It’s an interesting thought experiment because if we wanted to change laws to encompass this sort of arrangement (and I realize that’s a different thread, sorry), I’m not even really sure how to do that.
Back to the OP, it might be easiest to start with a list of instances where the law provides some special spousal privileges or whatever. Then think about what can and cannot be handled by contract law. I’m not the best source for that list. First things that come to mind are inheritance, medical decisions, testifying in court.
I’m not, either, but I’ll be following this thread with interest. I would probably start by looking for web sites that were designed to help gay couples in states without same-sex marriage from before Obergefell.
The problem with this line of thinking is that many of the benefits of marriage are things that a valid marriage impose on people and institutions outside the marriage. For example, if Chris and Pat are legally married to each other, then my understanding is that everyone else–including hospital emergency rooms in some other state where Chris and Pat went on vacation–are obliged to treat Chris as Pat’s “next of kin” and legally entitled to make important medical decisions on Pat’s behalf if Pat is injured or ill and unconscious or delirious or otherwise unable to make such decisions. (I am not a family law lawyer. Or any kind of lawyer.) It’s not just a question of allowing Chris and Pat and Terry and Lindsay (all consenting adults) to make whatever arrangements make them happy; it’s also a question of under what circumstances they can impose those arrangements on everyone else (including the Our Lady of Perpetual Sorrows Hospital’s emergency room, and their own parents and other blood relatives).
OK, in their situation, two of them are married to each other, a man and woman. The other man and woman are not but are involved with the others romantically/sexually/what have you. There is one child, age 8 from the marriage.
I’m assuming a trust can work. But parental rights to the child remain with the listed parents on the birth certificate, right? But the others could agree to some responsibility for childcare/raising in the trust?
Retirement issues can be paid into a trust, easy-peasy. That part I know for sure. Looking it up, is appears SSI CAN be paid into a Trust but that payment does not become an assignment of benefits. It still counts as the one person’s benefits for tax purposes.
In terms of medical issues, I know they can set up medical powers of attorney to assign specific rights to decision making in the event someone is incapacitated. So there are already systems in place to deal with something like that. Though it need an assignment of one person right now. I would leave who gets that power to the people involved. I don’t know if you could leave such a PoA to multiple people for consensus.
What about inheritance? If all assets are held in a trust would there even BE inheritance? The trust would essentially be immortal and there could never be a reason for inheritance at all? Someone dies, the assets remain in the trust for the remaining ‘spouses’ (I lack a better word).
In theory, they could keep adding people to the ‘marriage trust’ as needed/desired and even the originators have passed on.
And this is a problem because…? Anyone in a household should be treated as next of kin, obviously. What their position within the household is, and what their relationship with the others in the household is, isn’t particularly relevant.
A trust is mainly about dealing with assets, property. In principle I see no reason why the four persons concerned couldn’t transfer all their assets to a trust, and commit to pay their earnings to the trust, and then make joint decisions, through their shared control of the trust, about how to use the pooled assets and income. You’d have to think about how “shared control” would work - Unanimous decisions? A 3-to-1 majority? Any protective provisions for people adversly affected by a decision they didn’t agree with?
Obviously, you’d want to look very carefully at the tax implications for all concerned of transferring their assets and income to a trust.
Note that in the event of relationship breakdown, the usual recourse mechanisms that might be available through the family court system wouldn’t necessarily be available. Dissolving the trust might turn into quite a different exercise. It would be a lot more like the liquidation of a corporation or the dissolution of a business partnership than the divorce of a marriage, I think.
The trust can’t do anything about guardianship, custody, etc of the child. It would up to the actual parents of the child to make whatever arrangements are generally open under the law of the jurisdiction concerned to confer guardianship or parental rights on the members of the collective who are not related to the child.
While others have suggested that a couple (or more) should be free to regulate their relationship as they wish, the truth is that a large part of the law of marriage is not about regulating relations between the spouses, but rather the relationship between the couple and wider society. For example the law may confer rights on one spouse to succeed to a tenancy of the other; that affects the landlord. Or any tax treatment afforded to spouses affects the revenue, and the rest of society. Or preferential inheritance rights, which affect those who would inherit, but for the marriage. Etc, etc. In some cases you’ll be able to replicate these by, e.g., making a will or similar, but in other cases you won’t. If A dies, and neither B nor C nor D is the lawful spouse, there is probably nothing you can do which will force A’s landlord to accord any of them the rights they would have if they were a lawful spouse.
The bottom line here is that marriage isn’t a legal creation; it’s a legal recognition of a social reality. So the four participants here need to work out what kind of social reality they want to create, and only then can they ask what legal avenues are open to them that would be appropriate to that social reality. And it’s too easy to say, just like a conventional marriage but with more people. The whole point about conventional marriage in the western world is that it’s an exclusive relationship. In marrying this person, I give up any possiblity of having the same degree of intimacy, interdepence, etc with any other person. So the question of how to reconcile competing interests or claims of two or more spouses never arises; I only have one spouse. Similarly there can be no question of one spouse leaving a conventional marriage, and yet the marriage surviving, so you don’t have to think about how to reconcile property rights int hat situation, but this will happen with poly marriages. So a polyamorous union has to be radically different in many ways, and I think that probably means rebuilding the concept pretty much from the ground up. Only when you have nutted your way through all that can you think effectively about legal mechanisms for supporting the relationship you have devised.
That isn’t what I mean by “next of kin” (and perhaps I’m using the term incorrectly).
In the case of Chris and Pat, Married Couple, Chris can legally make medical decisions on behalf of the (unconscious or otherwise incapacitated) Pat. My understanding is that this extends to overriding the wishes of Pat’s old college roommates, friends, cousins, siblings, or parents. (This would not apply if Chris and Pat were merely dating, “in a relationship”, or I’m pretty sure even if they were living together–maybe Pat’s parents would still wind up being empowered to make all sorts of life-and-death decisions on Pat’s behalf in those cases, even though Pat’s an adult.)
Now, if Chris, Pat, and Terry are all in a marriage together, and Pat is injured or falls ill, who has that decision-making power? What if Chris has one opinion, and Terry has another? (“Pat was always so full of life–Pat would never have wanted to go on like this. And the doctors say there’s very little hope of recovery.” “Pat wouldn’t have wanted us to just give up! And ‘little hope’ is not the same as ‘no hope’! I thought you loved Pat, but it seems like you’re already planning the funeral!!!”)
That’s certainly something that Chris, Pat, and Terry should think about and consider before making this arrangement. Once they decide, they can legally grant power of attorney accordingly.
There are already situations where more than one person has say. For example, when divorced parents have a sick kid below the age of majority in the hospital. So it’s not like it’s impossible to sort out.
In my country marriage certification only certifies. Everything else is decided on the facts. That means that, if push comes to shove, nobody is ever considered equal in the eyes of the law. If you have two partners, did one put in more money? Did one do more childcare? Does one need more medical care or have poor job prospects? Having one certified and one uncertified would give them unequal starting points, but wouldn’t define the landing points.
If they don’t agree with one another, they’ve effectively made no decision. If their consent is required, it hasn’t been given.
The same would apply if you had a collective of spouses as next of kin though, just on the numbers, the more spouses there are in the collective, the greater the chances that at least one of them will fail to agree with the others. But, recognising the problem, the spouses themselves might each be prepared to assent to whatever the preference of a majority of them turns out to be. On the other hand, they might not all be prepared to do that.
This. It’s really not that complicated, we already can have situations where two or more people who both have legal right to make these decisions. Parents of minor children is one example; you can grant power of attorney to as many people as you wish, stipulating whether they each individually have POA or if they only have POA collectively.
Basically, the legal “building blocks” that make up marriage already exist outside of marriage (with the exception of filing taxes together). What I’m saying is, any two people or group of people should be able to make whatever agreement they wish. Whether they are married in a civil/religious ceremony or not shouldn’t matter to the government.