LA Probate Law: Unmarried Couples Estate Planning
Unmarried couples have a little bit of a hard time and face more challenges than married couples do but with a little bit of planning you can overcome these obstacles. Unmarried couples whether same-sex partnerships or opposite-sex unions face challenges when looking into estate planning. But there are also opportunities as well. It is advised that you seek counsel with a lawyer who has knowledge in LA Probate Law as many of these issues are state-specific and you will need to know what laws are in the state in which you live. Just because you are unmarried does not mean that your objectives in estate planning are any different than a married couples. All couples be they wed or unwed are trying to avoid the costs, delays and publicity associated with probate, to either eliminate or minimize estate taxes, guarantee that the assets will pass to whom they want, when they want them passed and how they want them passed. All couples are also trying to protect heirs assets from their heir’s inabilities, disabilities, creditors and predators. Unfortunately unmarried couples will not receive benefits from the legal presumptions and default provisions state and Federal laws automatically provide to married couples. An example of this would be one of the unmarried couple passes away without having a Will. The surviving person would not be considered next of kin and receive the descendant’s property as would happen with a married couple. The surviving person would also not be allowed to argue if the Will was set up in order to receive a portion of the property.
There has been some progress made in regards to Same-sex couples and their being able to qualify for the same benefits that married couples have. And the state of Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC same-sex marriages are recognized, legal and currently performed. New Jersey they allow what is called a civil union. This provides Same-sex couples to have state-level spousal rights. In the state of California, Oregon, Nevada and Washington State domestic partners are entitled to nearly all state-level spousal rights. In Hawaii, Maine, Washington, DC and Wisconsin domestic partnerships are only entitled to some state-level spousal rights. And in New York, Rhode Island and Maryland any same-sex marriages established from other states or other countries are recognized but are not performed in these places. Although the changes have been happening slowly there are still 41 states prohibiting same-sex marriage and 30 states have constitutional bans against them. Because so many states have such a varying laws knowing what your rights are in the state in which you live is important. Contacting somebody with experience in this field of LA Probate Law can help you to determine where you stand within your state. The U.S. Constitution the constitution requires a full faith and credits to be given by each state to the laws of another. However, in 1996 Congress passed the Federal Defense of Marriage Act or DOMA. This directly undercuts the constitution in specific regards to Same-sex marriage. 36 of the United States have passed their own DOMA laws. The Supreme Court of the United States may be left to decide the issue of same-sex marriage since there is so much conflict between the U.S. Constitution and DOMA laws.
Avoiding State Default Laws
If you are an unmarried couple you will not want to have to deal with the state’s intestacy laws. There are only a few states that will recognize unrelated persons and this includes unmarried couples. So if you live outside of these few states you will not be considered the next of kin no matter how long you’ve been with or what your relationship was to the deceased. Many states have default laws when concerning matters such as burial desires in priority among persons to act as guardians, conservators, personal representatives and patient advocates. Unmarried couples will want to avoid most of these and in order to do that you need to know the laws in your state, so it is again an advised that you seek a lawyer with knowledge and experience in LA Probate Law. Because of all of these default laws unmarried couples should write Wills and count on them to enforce their desires. Many areas should be covered as in joint property, beneficiary designations, general powers of attorney for financial matters and living Wills and healthcare powers of attorney. Unfortunately even when the surviving partner has been designated by the deceased through a Will, family members who disapprove can come forward and try and contest the Will or trust. There is a way to deter this from happening and that is by including and “In Terrorem” clause into the Will. This basically makes it so that any person who wants to come forward and contest the Will would automatically receive nothing. By adding this clause it helps to discourage people from challenging your Will in a court since nothing material can be gained for them by doing so.
Qualified Retirement Plans
Although retirement plans do not technically fall under state default laws unmarried couples find that they do not fare as well as their married counterparts in qualifying for retirement plans. Upon one’s death 401 K and pension plans are supposed to be distributed in a lump sum. This distribution is fully taxable, considered as regular income, in the year of the participant’s death. If the spouse has been named as beneficiary they can roll this over into an IRA, deferring the tax on the sum until they turn 70 ½.. A recent change has been made making it so that the non-spousal beneficiary is not forced to take the entire retirement plan within five years or as in some cases immediately after the death of their partner. As of 2007 the non-spousal beneficiary of the retirement plan can roll this over into an inherited IRA says LA Probate Law.
LA Probate Law: Unmarried Couples Estate Planning