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Same-Sex Partners and the Law

It is illegal in New Mexico to discriminate against a person on the basis of that person’s sexual orientation, gender identity, or perceived sexual orientation or gender identity. A person who believes an employer has discriminated against him or her may file a charge of discrimination before the Human Rights Division of the New Mexico Department of Labor. An employee has 180 days to file after the adverse action. The New Mexico Human Rights Act also prohibits discrimination in housing, credit and public accommodations.

Federal anti-discrimination statutes, administered by the U.S. Equal Employment Opportunity Commission, still do not recognize sexual orientation as a protected status, although Title VII does permit claims for same-sex sexual harassment.

Marriage/Civil Unions
Currently in New Mexico, same-sex couples are not issued marriage licenses. In February 2004, one county clerk issued and recorded 64 marriage licenses to same-sex couples. The Supreme Court of New Mexico granted an order restraining that specific county clerk from issuing more licenses to same-sex couples pending the lower court’s resolution of the dispute. The lawsuit to restrain the county clerk was later dismissed without any decision being rendered after that clerk’s term of office ended. As of April 2005, these 64 licenses have not been challenged, nor has any other clerk issued more. New Mexico doesn’t have civil unions or other legally recognized domestic partnerships. To date, only Massachusetts allows same-sex couples to marry. In addition, numerous countries outside of the United States provide for marriage by same-sex couples. Some states, including California and Vermont, currently permit same-sex unions, in one form or another. It appears from the language of our statutes that New Mexico is required to recognize same-sex civil unions and marriages formed in states and countries where they are authorized. However, no legal challenge has yet been brought to confirm or clarify this position.

Married couples comprised of one man and one woman are entitled to more than 1,400 automatic federal and state legal rights, benefits and protections that same-sex couples are excluded from, including, among others: Social Security as well as state-based survivors benefits; community property rights; tax benefits for married couples; and child custody and support rights and obligations. Domestic partners do not automatically have: the right to hospital visitation; the right to sue for wrongful death or infliction of emotional distress when a partner is killed or injured; the right to use the stepparent adoption procedures; the right to take sick leave to care for a domestic partner or a domestic partner’s child; the right to make medical decisions for an incapacitated domestic partner; the right to inherit if a domestic partner dies without a will; and the right to make funeral arrangements for a partner. By drafting agreements, powers of attorney and other legal instruments, same-sex couples can protect themselves and their families regarding some, but not all, of these rights and benefits automatically afforded married couples.

A durable power of attorney for finances allows you to designate a person to be your "agent" to take care of your finances if you are unable to do so yourself. A general power of attorney for finances authorizes your designated agent to control a broad range of financial matters, including paying your bills, cashing your checks, naming beneficiaries on insurance and other accounts, and receiving benefits. Alternatively, you can limit the powers of your agent to a specific time frame or to specific functions.

Child Custody
A legal parent is a person who has been identified following the birth or adoption or a child or otherwise by court order as an adult with the right to be with a child and make decisions about the child’s residence, health, education and well-being. A nonlegal parent does not have any legal decision-making authority. When a married couple has or adopts a child, they are both automatically considered the legal parents of the child. This automatic conferral of legal parental status is not available to lesbian or gay couples. Same-sex couples that adopt or conceive and raise children together are advised to complete stepparent or second-parent adoptions to protect the child’s relationship to both parents.

A nomination of a guardian names who the legal parent wishes to provide for the care and custody of a child in the event that the child’s legal parent dies or becomes physically or psychologically unable to care for the child. Usually, a person who is appointed to be the child’s guardian is given physical custody of the child and authority to manage the child’s financial matters. While a nomination is not binding on a court, most courts will give great deference to a clear nomination of guardianship in cases where there is no other legally recognized parent.

Same-sex couples may wish to enter into a parenting agreement. The agreement should specify that although only one of the parents may be the legal parent, both parents consider themselves to be the parents of their child, with all the legal rights and responsibilities that come with that position. The agreement should include language that clearly states the couple’s intention to continue to co-parent, even if their relationship is dissolved. Couples may also want to include child support, custody and visitation issues in their agreement.

In New Mexico, same-sex couples are eligible to adopt. "Joint Adoption" refers to an adoption in which both partners in a couple simultaneously adopt a child who, at least in the usual case, has no biological or pre-existing adoptive relationship to either party. The "best interest of the child" is the primary criterion for approving an adoption, although there is considerable flexibility in the factors that may be taken into account in evaluating an adoptive parent’s suitability.

Same-sex couples sometimes enter relationships in which one of the partners becomes the biological parent of a child, or where only one of the partners has adopted the child. In such cases, a "second-parent" adoption by the nonlegal parent may be sought. A second-parent adoption is the legal procedure by which a same-sex co-parent adopts his or her partner’s child without terminating the legal parent partner’s parental rights. As a result of the adoption, the child then has two legal parents, and both parents have equal legal status in terms of their relationship to the child. Second-parent adoptions are available in New Mexico.

Medical Care
In the event you are seriously injured or incapacitated, you may be unable to make medical decisions about your care. In most states, in the absence of written directions, healthcare professionals will turn to your blood relatives to make these decisions in the event you are unable to make them for yourself. This is true no matter how long you may have been with your partner and regardless of any relationship with your blood relatives.

A durable power of attorney for healthcare empowers another person to make medical decisions about your care in the event you become unable to. Even when you have specified your wishes in a living will/medical directive, there may be some decisions for which the healthcare providers need additional information to decide what action to take. In the absence of a durable power of attorney for healthcare, the healthcare officials will turn to your blood relatives to make these decisions. If you decide to enter into durable power of attorney for healthcare, make sure you make copies for yourself, your partner, your healthcare provider, your hospital and any person named as your proxy.

You can also execute a document describing your wishes concerning end-of-life and life-prolonging medical care. This document is your directive to healthcare professionals about what measures you want them to take when you are no longer capable of communicating your choices.

Finally, hospitals generally permit visitation only by a spouse or blood relatives. However, a hospital visitation authorization allows you to name individuals who are not related by blood or marriage who you would like to be able to visit you in the hospital in the event that you are no longer able to communicate this yourself. You should carry a copy of your hospital visitation authorization with you at all times.

In New Mexico, many people are not aware that the state law includes a provision for a surrogate to make health care decisions for an incapacitated adult if that adult has not signed a power of attorney. Who can act as a surrogate is listed in order of priority, with a married spouse listed first. If there is no spouse, then "an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other’s well-being" is authorized to act as the patient’s surrogate. It is not advisable to rely upon this statutory provision, and is recommended that all adults execute powers of attorney naming another adult to make important medical decisions on their behalf should they become incapacitated. Nevertheless, it is good to know that if you have an emergency situation and are without a power of attorney, a long-term domestic partner should be allowed to make medical decisions on behalf of an incapacitated patient.

Wills and Trusts
A will is a legal document that allows you to designate who will receive your property when you die, and how and why they will receive it. If you die without a will, your property will be distributed to your legal heirs. This is called intestate succession. In New Mexico, a same-sex partner is NOT considered to be a legal heir and therefore is not legally entitled to inherit your estate property if you die without a will. If it is important to you to protect your assets for your domestic partner, a consultation with an attorney and drafting a will is an important part of any plan.

Another way to designate who will receive your property upon your death is through a revocable living trust. A living trust is similar to a will in that it allows you to say who should get what; it differs from a will in that property left by a will must go through the court probate process, which can take six months to a year to process. With a living trust, the probate process is avoided. A living trust for a single person or unmarried couple does not typically affect whether or not there will or will not be estate taxes due.

Autopsy and Disposition of Remains
In the absence of written instructions, New Mexico gives your blood relatives the right to control the disposition of your body, including arrangements, upon your death. Written instructions let you express your wishes regarding these issues and name the person you would like to carry them out. In most states, these instructions are legally binding. A durable power of attorney for healthcare may authorize the agent to make these decisions regarding autopsy and disposition of remains, but in most states, the power of attorney is no longer valid upon the death of the person granting the power.

Special Note - This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.