Are you in an same sex relationship? Have you and your same sex unmarried partner created a will, talked to an estate planning attorney, or even given estate planning a second thought? If not, you need to consider doing so, not only to protect your partner, but to protect yourself as well.
Each state provides you with a default estate plan if you fail to plan your own estate. This estate plan comes in the form of intestate succession laws – a set of basic, one-size-fits-all rules for what will happen to property upon your death. For same sex unmarried couples, particularly in states that do not recognize same sex marriage, the state’s default plan can spell disaster.
Intestacy laws vary from state to state, but in general they provide that a deceased person’s assets first to his or her legal spouse, then children, then to blood relatives. Typically, if no living blood relatives can be found, the decedent’s assets go to the state. States that do not recognize same sex marriage, and intestacy laws do not even consider same sex unmarried couples.
What does this mean in practical terms? Consider this example:
Bill and John live in a state that does not recognize same sex marriage. They’ve been life partners for 20 years. Among their assets is a beautiful home, titled in Bill’s name. They’ve lived in the home for the past ten years and they plan to retire there. Like many couples, Bill and John never quite got around to planning their estates. Sadly, when Bill tragically dies in a car accident, John is forced to leave their home. Why? The state’s intestacy laws dictate that Bill’s parents – his nearest blood relatives – inherit his home.
What can you do to avoid a situation like this? You can establish your own, tailor-made estate plan that addresses your unique needs, wishes and concerns. One of the best way to do this is with a revocable living trust.
Many same sex unmarried couples make revocable living trusts the cornerstone of their estate plan. This accomplishes a number of goals:
- During your lifetime, it serves as a disability planning tool, helping you or your partner avoid a conservatorship proceeding in the event one of you becomes incapacitated.
- Upon your death, it allows for the transfer of assets without the need for probate. Trusts are administered privately, usually with less delay and less expense than with a public probate proceeding. The private nature of the trust administration process provides less opportunity for a trust contest or interference by family who might not approve of your lifestyle choices.
- A trust allows you to not only control who receives your assets, but when and in what manner your assets are distributed to your beneficiaries.
If you and your partner have children, and there is no other biological parent alive, it is essential that you express your wishes for the care of your children in a way that is legally recognized. If you as the parent are silent on this matter and you die while your children are still minors, you risk leaving the enormous decision of who will take care of your children up to the court – without guidance from you. It may seem obvious to you that your children would continue to live with your partner, but what if a family member or the judge does not approve of your partner’s lifestyle? The solution is to create a Will that specifically names the person you’ve chosen to act as guardian for your children, which may very well be your same sex partner who is already a parent to your children.
You have heard the stories of same sex couples being denied the right to visit each other in the hospital. And you’ve also heard about blood relatives stepping in and making important healthcare decisions for a gravely ill person when you would rather your long-term same-sex partner make those decisions for you. These scenarios can be avoided with advance health care planning.
With an advance health care directive (also known as a power of attorney for health care and a living will in some states), you can designate your partner as your agent to communicate with doctors and make medical decisions on your behalf. With an advance health care directive you can also detail your preferences for end-of-life medical decisions. And you can include instructions in these documents that your partner be permitted access to your hospital room, no matter where you are and even if someone in your family objects.
It is not enough to simply have these documents. You need to let your medical care providers know that these documents exist. Give a copy of your health care directive to each of your doctors, and make sure your partner has copies of each of these documents. If you and your partner are traveling to a state that you know will not recognize your partnership, be sure to have a copy of your health care directive with you so if something happens you will be able to make decisions for your partner and not be denied the right to visit him or her.
Unmarried same sex couples face unique challenges when it comes to planning for the future, but the last thing you should do is settle for the state’s default estate plan. With the help of an experienced estate planning attorney, you and your partner can make sure your interests are protected and your wishes will be honored.
I am estate planning attorney Eric Rudolph, Esq. with The Law Offices of Eric A. Rudolph P.C. We specialize in estate planning and trust & estate administration for same unmarried sex couples, LGBT couples and same sex married couples. Please call us at (760) 673-7600 or e-mail Eric directly at firstname.lastname@example.org for more information.