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CONCLUSION Uncertainty is presently a given in creating a contractual bond for same-sex couples in Kentucky. However, with a candid discussion and acknowledgement of this uncertainty with and by your client and careful drafting of the contract, you should be able to create a written contract for your clients that reflect the mutual obligations and rights your clients wish to undertake with their partners. A native and resident of Lexington, Madeleine Taylor Baugh has practiced law in solo or small firm practice for 25 years. She is a double graduate of the University of Kentucky. She concentrates in the areas of life planning, estate planning, estate administration, small business formation/dissolution and real property law. She believes that planning for what happens while we live is as important as planning for when we die. 1 2 3 4 5 6 7 8 9 Kentucky Constitution Section 233A; KRS 402.005; 402.020; 402.040; 402.045. KRS 402.045. Domestic Relations Law, 3d, Vol. 15, Kentucky Practice Series, pg 64, Note 4. Also note Ireland v. Davis was cited in 855 So.2d 690 (Fla. App 2 Dist. 2003) Peterman v. Meeker. See Estate of Reaves v. Owen 744 So.2d 799 (Miss Ct. App. 1999) where Miss. Court upheld obligation to make payments was enforceable as a matter of private contracts, whether or not, Miss. prohibited palimony and same-sex marriage. Murphy v. Bowen 756 S.W.2d 149 (Ky. App. 1988). Id. See also AOG 07-004 regarding the extension of employee health insurance coverage to "domestic partners" and conditioning such benefits upon a legal status defined in manner substantially similar to marriage. See also dicta in S.J.L.S. v. T.L.S. 265 S.W.3d 804 (Ky App. 2008) at page 836, where the Court of Appeals stated "[w]e take issue with any legal professional, and will reverse any court, for exempting any person or group from the uniform application of our laws merely because their membership in a particular subset of society". CR 76.28(4)(c) Opinions that are not to be published shall not be cited or used as binding 10 11 precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after Jan. 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action. See Restatement of Contracts, Section 169. KRS 402.040(2) states that marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045. KRS 402.045 states that a marriage between members of the same sex occurring in another jurisdiction is void in Kentucky with any rights granted by virtue of the marriage unenforceable. As of the date of publication, 18 states and the District of Columbia permit marriage between members of the same 12 13 sex. The states are California, Connecticut, Delaware, Hawaii, Illinois (as of June 14, 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, New Mexico, Rhode Island, Utah (currently subject to a U.S. Supreme Court stay pending state appeal), Vermont, and Washington. These states are referenced as recognition states. Kentucky and the other 32 states which do not permit marriage between members of the same sex are referenced as non-recognition states. The good basic list of contract details, given in Estate Planning for Same Sex Couples, Second Edition, by Joan M. Burda (2012 American Bar Association), has been used as the basis for the list given in this article. The author recommends this book for its excellent commentary and forms. KRS 362.220. An additional article regarding Legal Issues for the LGBT Community has been placed on the KBA website under the Hot Topics page. Look for this logo at www.kybar.org to find this additional article: Windsor is a Win for Same-Sex Couples, But Not Every Change is Welcome By Margaret S. Barr Put our ERISA experience to work for your clients!! clients ERISA •Long-term Disability •Short-term Disability •Life/Accidental Death Insurance Do you have clients eligible to receive benefits under an ERISA plan? We can help. Early representation is key, so call us today.. today (859) 225-3731 THIS IS AN ADVERTISEMENT 201 W. Short Street, Suite 800 • Lexington, Ky 40507 B&B; • 1.14 15 While partnership law can be used to create a legal business relationship between members of a same-sex couple and can be useful for establishing property rights between the business partners, it is not useful for creating contractual obligations between the couple as to their personal property or their financial or domestic obligations to one another. It is also important to remember that each business partner is jointly and severally liable for the partnership obligations.13