LGBTQ+ Family Law

Joni Watke | Watke, Polk & Sena, LLP

Joni Watke has been an attorney in private practice since 1996 focusing on family law and estate planning. She has been educating on LGBTQ+ topics since 2008. She co-founded Academy LGBTQ+ whose mission is to educate organizations and families to elevate themselves so they can celebrate LGBTQ+ individuals. Joni is also a former PFLAG National Board Member. PFLAG is the country’s oldest and largest organization of allies and LGBTQ+ individuals working together to move equality forward.

Joni presents to educate and raise awareness of LGBTQ+ issues for thousands across the country each year, including Fortune 500 companies, the American Bar Association, state bar associations, first responders, medical and mental health professionals, educators and administrators, non-profit organizations, and faith communities.

Patricia A. Cain | Santa Clara University

Professor Patricia Cain is a national expert in federal tax law and sexuality and the law. Her area of specialization is taxation and estate planning for unmarried couples and she frequently lectures on this topic at state and national continuing legal education programs. She is the co-author, with Professor Arthur S. Leonard, of one of the leading casebooks for Sexuality and the Law courses, Sexuality Law, 3 rd. edition (2019). She is also the author of Rainbow Rights, The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (2000) and has recently edited a pivotal book on early women law professors, originally authored by the late Herma Hill Kay and titled, Paving the Way: The First American Women Law Professors (2021). In 2023, she published a casebook on remedies, Remedies: Classic and Contemporary Cases (with co-author, Jean Love).

Professor Cain began her law teaching career at the University of Texas in 1974, where she was a member of the faculty for 17 years. She then joined the law faculty at the University of Iowa, where she held the Aliber Family Chair in Law and served as Interim Provost of the University and later as Vice Provost. She has been a member of the Santa Clara University School of Law faculty since 2007. She is a member of the ALI and a fellow in ACTEC and ACTC. In 2024, the Tax Section of the Association of American Law Schools awarded her the inaugural lifetime achieve award.

Toby Adams | Law Office of Toby Adams

Toby Adams (she/her) practices family law and estate planning California with a focus on the polyamorous, LGBTQIA+, and disability communities. Toby has served nontraditional families for her entire legal career and clerked for the National Center for Lesbian Rights, Legal Aid at Work, Transgender Law Center, InterACT, and Equality California. She founded the first organization in the United States to address the rights of people to identify as nonbinary on government issued documents. She has been a leader in nonbinary & intersex rights, bisexual visibility, and marriage equality for over two decades. Toby was one of the principal authors of BiLaw’s amicus brief filed in the Obergefell Supreme Court marriage case in 2015 and received the BALIF 2018 Legal Services Award.

Toby received her J.D. with Distinction from University of Pacific, McGeorge School of Law in 2012, and her M.B.A. from San Jose State University in 1995. Prior to beginning her legal career Toby was a Project Manager at Hewlett-Packard and before that was a lighting and sound engineer. Toby is a recent empty nester living with her spouse, Dylan. They are currently building a wheelchair accessible house in the Hayward Hills, and Toby swears the location has nothing to do with her 20-something-year-old kids living 5 minutes away.

Session I – LGBTQ+ 101 for the Legal Profession | 11:00am – 12:00pm

• Identify the components of our sexuality
• Discuss and understand the distinctions among the components of our sexuality
• Understand the intersectionality of our biology, gender identity, gender expression, and sexual orientation
• Understand how to improve allyship in your workplace
• Understand how to improve allyship with your clients

Break | 12:00pm – 12:10pm

Session II – Couples in Relationships | 12:10pm – 1:10pm

• Married same-sex couples
  • Does it matter when you married?
  • Is there a threat to marriage equality going forward?
• Registered Domestic Partnerships (or equivalents)
  • Recognized as marriage in states where such relationships are authorized
  • Not generally recognized by the federal government (e.g., RDPs are not spouses for federal tax purposes)
  • But couples are recognized for purposes of surviving partner rights under social security
  • Federal government (especially IRS) does recognize state property rights that stem from state registration (e.g., community property rights of RDPs in California, Nevada, and Washington). Federal government also recognizes the stepchildren of registered partners if state recognizes that relationship
• Unmarried (unregistered) cohabitants
  • Not recognized under federal law for any purposes
  • Not recognized under state law, except for some property rights claims (e.g., Marvin claims, based on the Marvin v. Marvin case decided by the California Supreme Court in 1976)
  • Stronger, quasi-community property rights may be recognized for some cohabitating couples in the State of Washington
• Issues at “divorce”
  • Married couples have same rights as all married couples (community property rights or equitable distribution as to property division and obligations of support)
  • RDPs have the same rights as married couples if the state law recognizes the registration
  • Unmarried couples split property according to any agreements they have, or implied agreements under Marvin. There is no obligation of support unless by contract
• Tax issues at divorce
  • Married couples: Alimony is not taxable income and not deductible for any married couple. Property divisions are not taxable to either spouse under Section 1041
  • RDPs: alimony/support can be ordered by a state judge. If it is, it should not be taxable to the recipient and not deductible by the payor because there are no IRC rules authorizing that treatment anymore (See Tax Cut and Jobs Act of 2017). Property divisions may not be taxable if they can be viewed as a substantially equal division of previously jointlyowned property. This works well for RDPs in community property states, but there are good arguments for extending that treatment for unmarried couples who are relying on Marvin claims. Estate planning for the Community Spouse
  • Unmarried couples: There is very little established law here. One case, Reynolds v. CIR, T.C. Memo. 1999-62, held that the transfer of property was not taxable income to the recipient because she was merely getting property she already owned (or had a viable claim to). This case supports the conclusion that if the Marvin claim is strong enough, a division of property might not trigger tax to either partner. But if Marvin and Reynolds do not apply, the transfer could trigger income to the recipient and/or gift taxes to the payor. A transfer of appreciated property could also trigger capital gains tax to the transferor under U.S. v. Davis, 370 U.S. 65 (1962)
• Rights at death
  • Married couples: intestate share, community property share, or elective share in common law states
  • RDPS: In community property states, a community property share. In non- community property states, if the registration is recognized by the state, then the survivor has the right to an elective share if that is available under state law
  • Unmarried couples: If there is no will, the survivor can claim rights under Marvin or general contract theories or quantum meruit
• Tax Issues at Death
  • Married couples: All gifts to a spouse are exempt from the transfer tax under the 100% marital deduction
  • RDPs: Partners are not spouses so there is no marital deduction. If community property rules apply, then only 50% of the community property will be included in the deceased partner’s estate
  • Unmarried couples: Who knows? There are no cases on point. No problem if the couple co-owned everything. Then only half is in the taxable estate. But if the survivor is making a claim against the estate, there are at least two questions: (1) Whether or not the recipient (if successful on the claim) has an excluded bequest as to taxable income, and (2) Whether or not the estate has a deduction for the amount of any successful claim against the estate
• Tax Issues During the Relationship
  • Payments of support by one partner for the benefit of the other

1. 1. 1. No tax consequences if married
      2. Probably no tax consequences if registered (Transfers in satisfaction of a state-imposed obligation of support are not taxable gifts. See Rev. Rul. 1968-379)
      3. But other payments for support may be taxable gifts. See Rev. Rul. 54-343, 19542 C.B. 318 (father’s payments of hospital bills and living expenses of son and son’s family held taxable gifts); Rev. Rul. 82-98, 1982-1 C.B. 141 (parent’s support of adult disabled child held as taxable gifts). See Robert G. Popovich, “Support Your Family, but Leave out Uncle Sam: A Call for Federal Gift Tax Reform,” 55 Md. L. Rev. 343 (1996); but see Patricia A. Cain, “Same-Sex Couples and the Federal Tax Laws,” 1 Law & Sexuality 97 (1991) (arguing that support payments by one partner for the joint consumption of both partners should not be viewed as taxable gifts because they are not transfers of property and such payments do not constitute the sort of estate depleting transfers that the gift tax was intended to cover)

• • Other payments: gifts or income? See Pascarelli v. Commissioner, 55 TC 1082 (1971) aff’d, without published opinion, 485 F2d 681 (3d Cir. 1973), cert. denied, 488 US 850 (1988)(held payments by man to his female cohabitant were gifts, not income as IRS argued)

Break | 1:10pm – 1:20pm

Session III – Beyond LGBT: Family Law for Polyamorous, Nonbinary, and other SOGI Minorities | 1:20pm – 2:20pm

• Basic strategies for representing unique clients and families, especially client intake forms that include preferred as well as legal names, pronouns allowing for fill-in-the- blanks, and family structures that capture both the legal requirements (legally married, legal parentage) and the true nature of family (parents without legal standing, metamours, nesting partners, etc.)
• What is polyamory? Nuts and bolts of serving poly clients, including the importance of conflict waivers, leveraging existing communication skills for mediation divorces, permutations in a trust for a triad or quad, utilizing practical steps such as name changes to bind a family, and third-parent judgments of parentage, among others
• Other underserved clients include transgender people having children, bisexual parents in custody battles, intersex people seeking legal gender marker changes, and autistic nonbinary clients unable to obtain culturally competent representation, learn about the world beyond lesbian and gay