Can a Living Will Give Me Parental Rights as an LGBT Partner?

lgbt legal questions

Q: My boyfriend is the biological father of a newborn baby girl (via a surrogate who has surrendered her rights). We have not yet started the second-parent adoption process, but will a will protect my parental interests of our daughter if something should happen to my boyfriend?

A: Congratulations on the birth of your daughter!

I encourage you to start the second-parent adoption as soon as possible as it is the only way to ensure that your legal rights as a parent are fully recognized nationwide. Before the adoption is finalized, there are documents that can be drafted to protect your family.

Since Greenberg Adoption focuses only on adoption and family formation, I have consulted with New York & New Jersey family lawyer Karla S. George to address your question.

Most important is a Last Will and Testament, also known as a “Will,” which is a legal document that declares how an estate or property will be managed after the writer’s death. A Will determines one’s wishes on how to make decisions for one another, raise each other’s children or inherit one another’s property. If one dies without a Will in New York, your property will automatically pass to your biological family (absent a marriage or civil union). A Will gives you control over what happens – and it is especially prudent if you think that a biological relative may potentially contest.

A Will should declare guardianship of your daughter and how property or money will be used to provide for your daughter. If a parent is not clear as to the guardianship of their children, their same-sex partners (absent a second-parent adoption) will have no legal right to retain custody of a child. Further, the partner will have no legal recourse to challenge family who choose to petition a court for the legal right to raise the child.

Similar to the declaration of guardianship in a will, the parental appointment of a guardian allows your boyfriend to list you as the guardian for your daughter. This differs from a Will because it goes into effect if your boyfriend should become incapacitated.

A non-expiring power of attorney for parental authority can also be executed, which would grant you decision-making rights regarding your daughter’s care and custody. These decisions include educational and medical decisions, and essentially allow you to step in and act as a parent under the law.

For answers to your adoption questions or to set up a free consultation, please visit
Evita Nancy Torre is an adoption attorney with Greenberg Adoption: The Law Offices of Clifford L. Greenberg in New York City. The firm’s founder, Cliff Greenberg, is the resident legal expert at The Lesbian, Gay, Bisexual & Transgender Community Center, and published a children’s book (illustrated by his young daughter) about a girl’s adoption by two loving mothers, “Living the Dream with Mommy and Mama.” Greenberg Adoption hosts The Center’s monthly Family Law Clinic, and exclusively practices adoption law.

Please Note: This article, or its content, does not create an attorney-client relationship. The information provided is about legal issues but it is not intended as legal advice.

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