Recent years have seen an unprecedented rollback of many hard-won civil rights for LGBTQ+ Iowans at the state and federal levels. There are several ways LGBTQ+ Iowans can protect and empower themselves and their loved ones regardless of what decisions judges or lawmakers may make.
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.
It is crucial that wills, trusts, and other legal documents be worded very carefully to ensure they provide necessary protections. For example, language should be included to ensure the documents will remain in full force and effect even if marriage equality is eventually repealed, and terms used throughout the document should be carefully defined. Consider the case of a will-maker (a “testator”) who signs a will leaving property to “my children,” defined as “all children who are born to or adopted by me.” If the testator’s wife conceives a child using the wife’s eggs and sperm from a third-party donor, that child is not included in the will (they were not “born to or adopted by” the testator) unless a legal adoption has been completed, resulting in the child’s 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 principal’s lifetime. There are two main types of powers of attorney: a durable power of attorney for health care and a general power of attorney.
- In a durable power of attorney for health care, the principal selects an agent who has the power to 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 selects an agent who has the power to make decisions about the principal’s income, property, and financial affairs.
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 someone to make decisions about the person’s funeral, cremation, burial, and other post-death arrangements. This can be especially important for transgender and nonbinary Iowans with families of origin who cannot be trusted to use their correct name and pronouns or dress them in gender-appropriate attire for final services. 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 confirmatory adoption is a legal process that a non-biological 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 to complete the adoption. This type of adoption is sometimes referred to as a “confirmatory adoption.”
The procedure for an Iowa confirmatory adoption is generally straightforward:
- First, the non-biological 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 biological 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. A 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 biologically related to the child. In some cases, courts have ruled that the non-biological parent who has not completed a confirmatory adoption does not have any parental rights at all—even in cases where the parent planned for the conception and pregnancy, was named on the birth certificate, and raised the child from birth.
An adoption decree provides the strongest legal protection, as it is a final, legal confirmation of the parent-child relationship, 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 confirmatory adoption can be invaluable if one of the parents dies or a divorce occurs, or if the family travels to an area with even fewer LGBTQ+ protections.
Bottom Line
Laws pertaining to confirmatory adoptions, powers of attorney, declarations of designee for final disposition, wills, and trusts vary by state. Contact your local LGBTQ+-affirming attorney to find out which laws apply in your area, and which documents are right for you. With proper legal planning, you can protect and empower yourself and the people you care about to the fullest extent possible, providing peace of mind.
