Legal Protections for LGBTQ+ Iowans Amid Post-Election Uncertainty

November 12, 2024

In recent years, LGBTQ+ individuals have seen an unprecedented rollback of many of their basic civil rights at the state and federal levels. There are several steps LGBTQ+ Iowans and others can take to protect themselves and their loved ones regardless of these rollbacks and any future changes in the law.

Wills, Trusts, and Beneficiary Designations

In Iowa, if an unmarried person dies without a will or trust, their home, bank accounts, and other assets could pass to their family of origin, even if they are estranged, rather than to their longtime partner or chosen family. By signing a will or trust and ensuring proper beneficiary designations on life insurance, retirement accounts, and other assets, LGBTQ+ individuals can ensure their assets will pass to the people or causes they care about most.

Wills, trusts, and other legal documents should be worded very carefully to ensure they provide the proper protections. Consider the case of a testator (a person who makes a will) who signs a will stating, "all my property passes to my children, in equal shares," and then defines "children" as "all of my biological children." The testator and her wife later have a child together using the wife's eggs and sperm from a third-party donor. That child is not included in the will's technical definition of "children," which could lead to his accidental disinheritance. This type of unintended consequence can be avoided with carefully drafted legal documents.

Powers of Attorney

A power of attorney is a legal document in which one person (the "principal") gives another person (the "agent") the power to make decisions on the principal's behalf during the agent's lifetime.

• In a durable power of attorney for health care, the principal names one or more agents who can make decisions about the principal's medical care in case the principal is too ill to do so.
• In a general power of attorney, the principal names one or more agents who can make decisions about the principal's income, property, and financial affairs during the principal's lifetime.

Powers of attorney are especially important for LGBTQ+ individuals. Without these documents, a hospital will follow state law to determine who makes medical decisions, and a court may need to appoint a conservator to manage financial affairs. That decision-maker may be an estranged biological family member who prevents a partner from being present at the hospital or informed of the prognosis, or who refuses to use the funds for gender-affirming care and other necessities. By signing powers of attorney, LGBTQ+ Iowans can help ensure their medical and financial decision-makers will be people they know and trust.

Designation of Funeral and Burial Decision-Maker

In Iowa, a person can sign a "declaration of designee for final disposition" naming one or more people who can make decisions about the person's funeral, cremation, burial, and other post-death arrangements. This can be especially important for transgender and nonbinary Iowans whose families of origin cannot be trusted to use their correct name and pronouns or dress them in gender-appropriate attire for the funeral and burial service. A declaration of designee for final disposition enables LGBTQ+ Iowans to choose decision-makers who will respect their personhood.

Confirmatory Adoptions

For LGBTQ+ parents, marriage equality does not necessarily guarantee parentage equality. A second-parent adoption is a legal process that a non-genetic parent can use to confirm and protect their parental rights.

Iowa, unlike other states, does not have laws specific to second-parent adoptions. Iowa does have laws permitting stepparent adoptions, and LGBTQ+ Iowans who are married to their child's other parent can rely on those laws in order to complete the adoption. This type of adoption is sometimes referred to as a "confirmatory adoption."

In Iowa, the procedure for a confirmatory adoption is generally straightforward:

• First, the non-genetic parent files a petition with the court providing certain information and asking the court to grant the adoption. The petition may also ask the court to terminate any parental rights that the third-party sperm donor, if any, may have. Other documents, such as the birth certificate and consent signed by the genetic parent, may also be needed.
• Next, the judge will schedule a court hearing.
• Finally, at the hearing, the judge will enter a final decree of adoption.

A final adoption decree carries much more legal weight than a birth certificate alone. An Iowa birth certificate is an administrative document only and is not a legal determination of parentage. It merely recognizes that the listed parents were married to one another when the child was born, and therefore, they both are presumed to be the parents. This "legal presumption of parentage" can be overcome if it is later proved that one of the named parents is not genetically related to the child. Courts have ruled that a non-genetic parent who fails to complete a legal adoption does not have any parental rights following a divorce or the death of the other parent-even if they are named on the birth certificate, and even if they helped raise the child since birth.

A final decree of adoption provides the strongest legal protection, as it is a final, legal confirmation of the parent-child relationship. It is recognized in all U.S. states and territories and can never be undone. Adoptions do not rely on any biological relationships between the parties; instead, the legal parent-child relationship is created by court decree. Completing a second-parent adoption can be invaluable if one of the parents dies or a divorce occurs, or if the family travels to an area with fewer LGBTQ+ protections.

Bottom Line

Laws pertaining to wills, trusts, powers of attorney, post-death arrangements, and confirmatory adoptions vary by state. Contact an affirming attorney in your community to find out which laws apply in your area, and which documents and legal processes are right for you. With proper planning, you can provide peace of mind and protect and empower yourself and those who are most important to you.