Are you in an unmarried same-sex domestic partnership? Have you and your partner created a will, consulted an estate planning attorney, or even considered estate planning? If not, it’s crucial to start sooner rather than later. Proper planning protects both you and your partner.
Each state has default estate plans through intestate succession laws, which dictate what happens to your property if you die without a will. For unmarried same-sex couples, especially in states that don’t recognize same-sex marriage, these laws can be disastrous.
Understanding Intestacy Laws
Intestacy laws vary by state but typically prioritize legal spouses, children, and blood relatives for inheritance. If no living blood relatives can be found, the assets go to the state. Most states don’t recognize same-sex marriage, and intestacy laws often don’t account for same-sex life partners.
Practical Implications
Consider this scenario:
Rob and Steve, life partners for 20 years, live in a state that doesn’t recognize same-sex marriage. They own a home titled in Rob’s name, where they’ve lived for ten years and plan to retire. Tragically, Rob dies in a car accident. Because they never planned their estates, Steve is forced to leave their home. The state’s intestacy laws dictate that Rob’s parents inherit the home, not Steve.
Tailor-Made Estate Planning
To avoid such situations, you can establish a customized estate plan addressing your unique needs and wishes. A Revocable Living Trust is an excellent tool for this purpose.
Benefits of a Revocable Living Trust
Disability Planning: Helps avoid conservatorship proceedings if one partner becomes incapacitated.
Avoiding Probate: Allows asset transfer without probate, ensuring a private, less delayed, and less expensive process.
Control Over Assets: Lets you decide who receives your assets, when, and in what manner.
Guardianship
If you have children and no other biological parent is alive, it’s essential to legally express your wishes for their care. Without this, a court may decide their guardian without your input. To ensure your children stay with your partner, create a will naming them as the guardian.
Health Care Directives
Advance Health Care Directives (also known as Power of Attorney for Health Care or Living Will) are vital. They allow you to designate your partner as your agent for medical decisions and ensure hospital visitation rights. These directives also enable you to detail your end-of-life medical preferences.
Ensure your medical care providers and partner have copies of these documents. If traveling to a state that doesn’t recognize your partnership, carry a copy to avoid complications.
Same-sex domestic partners face unique estate planning challenges. Don’t rely on the state’s default plan. With an experienced estate planning attorney, you can protect your interests and ensure your wishes are honored.
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For more information on preparing a trust & estate administration for same-sex couples,contact Estate Planning Attorney, Eric A. Rudolph, at (760) 673-7600 or schedule an estate planning consultation.
