When Three (or More) is Not a Crowd: Poly Families & Pennsylvania Law

Polyamory is the practice of being in intimate relationships with more than one partner with the knowledge and consent of all partners. Poly families have many considerations in structuring their legal affairs so that the intention of the individuals in the relationship are defined, protected and respected. Because not all polyamorous families are alike, it is important to communicate to your each other and your attorney your family structure. For example, individuals in group relationships will likely wish to structure their legal affairs differently than individuals who draw distinctions between primary and secondary relationships.

Estate Planning

Estate planning is a powerful tool in defining your intentions in the event of disability or death. This is especially important where the individuals who are legally defined as “next of kin” are not the individuals, or only individuals, who you intend to receive property or make decisions on your behalf in the event that you are unable to do so. Estate planning tools that may be especially helpful for individuals in polyamorous relationships are wills, financial powers of attorney, health care and mental health care powers of attorney, living wills, beneficiary designations and standby guardianship designations.

• Will – A will is a document that sets forth your wishes regarding who should receive your property after your death and the person or persons who will be in charge of administering your estate after your death.

• Financial power of attorney – This document identifies who will handle your financial affairs in the event that you are sick or injured and unable to manage your finances.

• Health care and mental health care powers of attorney – A health care power of attorney identifies who you wish to direct your medical treatment in the event that you are sick or injured and unable to make or communicate your wishes. Likewise, a mental healthcare power of attorney allows you to identify an agent to make decisions regarding your mental health care in the event that you are unable to make these decisions on your own behalf.

• Living will – A living will, also known as an advance directive, allows you to communicate your wishes regarding life-sustaining measure in the event that you are unable to make or communicate your wishes.

• Beneficiary designation – For assets such as retirement accounts and life insurance policies, individuals can complete a beneficiary designation that states their primary/secondary beneficiaries and/or intention that the benefit be divided among more than one individual.

• Standby guardianship designation – This document allows parents to name a co-guardian to assume the care of a child upon a triggering event.

• Medical consent authorization – A medical consent authorization allows parents to name individual(s) who are not legal parents to make medical decisions on behalf of a child.

Marriage

While much can be accomplished in defining your intentions in the event of disability or death through careful estate planning, there are many rights, benefits, and legal protections that are only available through marriage. Civil marriage in Pennsylvania and the rest of the United States is a union between two individuals, whether they are the same or opposite sex. Spouses are legal next of kin and there are there are 1,138 federal statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. Spouses are exempt from certain taxes in the event of the transfer of property from one spouse to another and in the event of a spouse’s death. A marital relationship can also give rise to benefits such as those associated with social security. A marital relationship can also generate certain assumptions regarding parentage of children born within the context of a marriage. In the event of the end of a relationship, a marriage can provide financial protections to a dependent spouse.

Individuals in polyamorous relationships should understand how entering into a marriage affects the rights of each individual in a polyamorous relationship. For certain families, it may make sense for there to be one or more marriages within the group. For others, the existence of a marriage may frustrate the intention of the group. Prenuptial agreements may be appropriate where the individuals want to set forth specific intentions, other than those provided for by law, in the event of the death of one spouse or a divorce/separation between spouses.

Parenting

Individuals in polyamorous relationships may have children within the context of their polyamorous relationship or may bring children into the polyamorous relationship from prior relationships. Pennsylvania is one of the few states with case law providing that custody should not be denied based only on the fact that an individual is in or has been in a polygamous relationship. A 2012 appellate case found that the trial court erred by considering father’s prior participation in a polyamorous relationship as a ground to award legal custody and primary physical custody to the grandparents instead of him. You can read the decision here.

When children are conceived within the context of a polyamorous relationship, the intention of the adults in the relationship with respect to their roles in raising the children should be clear prior to conception and which of the individuals parenting the children will be legal parents. In some families, the intention may be for the legal parents (biological or adoptive) to be primarily responsible for the children and other members of the relationship to be known to the child as extended family and considered “aunts” or “uncles”. In other relationships, it may be the intention that all individuals in the relationship take equal responsibility for the children regardless of biology or adoption.

In Pennsylvania, there is no established precedent for a child to have more than two legally-recognized parents, although there have been adoptions establishing three legal parents in other states such as Washington, Massachusetts, and Alaska. In 2013, California was the first state to enact a statute allowing children to have more than two legal parents. Pennsylvania law does, however, recognize the have a precedent for there to be custodial rights of individuals who are not legal parents where they stand “in loco parentis” to the children and where they have assumed rights and obligations incident to parenthood. An individual can be legally recognized as being "in loco parentis" to a child even where there are two legal parents involved in the child’s life. In addition to executing estate planning documents such as standby guardianships designations and medical consent authorizations, there may be additional measure to be taken to protect the relationship of children with the adults who love and care for them. In some cases, it may be beneficial to have a custody agreement even within the context of an intact relationship to clarify important issues such as who has standing to seek custody as well as who has the authority to make decisions regarding the children and/or to receive information from medical providers and educators.

The legal issues facing individuals in polyamorous relationships can be complex. It is important to work with an attorney who understands your family structure and is able to find innovative solutions within the law to meet your family and estate planning goals. If you would like more information or to set up a consultation appointment, contact Jerner Law Group, P.C.