You might not realize it, but you already have an estate plan. Even if you’ve never created a Will, never set foot inside an estate planning attorney’s office, and never given estate planning a second thought.

Here’s why: each state provides every citizen with a default estate plan. This estate plan comes in the form of intestacy law – a set of basic, one-size-fits-all rules for what happens to property after upon death. For same-sex 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 go first to his or her legal spouse, then to blood relatives. Typically, if no living blood relatives can be found, the decedent’s assets go to the state. Most states do not recognize same-sex marriage, and intestacy laws do not make room for life partners.

What does this mean in practical terms? Consider this example:

Tim and George 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 on ten acres, titled in Tim’s name. They’ve lived in the home for the past ten years and they plan to retire there. Like many couples, Tim and George never quite got around to making estate plans. Sadly, when Tim dies in a car accident, George is forced to leave their home. Why? The state’s intestacy laws dictate that Tim’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.

Revocable Living Trust

Many same-sex couples make a revocable living trust the cornerstone of their estate plan. This tool accomplishes a number of goals:

  • During your lifetime, it serves as a disability planning tool, helping you or your partner avoid guardianship or conservatorship proceedings 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, often with less delay and less expense than with the public probate process. The private nature of the trust administration process provides less opportunity for being contested or interference by family members who might not approve.
  • A trust allows you to not only control who receives your assets, but when and in what manner.

Guardianship

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 recognizable.

If you as the parent are silent on this matter and you die while your children are still minors, you risk leaving the monumental 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 the judge doesn’t approve of your partner’s lifestyle? This is a situation where it’s better to be safe than sorry. The solution is to create a Will that specifically names the person you’ve chosen to act as guardian for your children.

Health Care

You’ve heard the stories of partners 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 those decisions would be better made by that person’s long-term partner. Both of these scenarios can be avoided with planning.

With a Health Care Power of Attorney, you can designate your partner as your agent to communicate with healthcare personnel and make medical decisions on your behalf. With a Living Will you can also detail your preferences for end-of-life medical care. You can also include instructions in these documents that your partner be permitted access to your hospital room.

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 Power of Attorney and your Living Will to each of your doctors, and make sure your partner has copies of each of these documents.

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 relax in the knowledge that your interests are protected and your wishes will be honored.


By: The American Academy of Estate Planning Attorneys

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