While everyone can benefit in some way by having a comprehensive estate plan, the benefits may be even more important for same sex couples who are unable to legally marry. Marriage makes estate planning much simpler, because of the automatic eligibility for benefits that married couples have. However, when legal marriage is not an option, same sex couples need an estate plan for the future, in order to protect their loved ones.
Estate planning issues for same sex couples
Despite some of the long-awaited changes in the law regarding same sex marriage, the LGBTQ community will continue to face challenges that spill over into estate planning. Both state and federal laws play a role in determining whether a couple can have joint ownership in certain property. The law also establishes certain rules as to who can receive assets when someone dies and how the estate taxes will be calculated. Other issues, such as who can make health care decisions when someone becomes incapacitated, are also governed by state laws. Regrettably, the majority of these laws do not apply to couples who are not legally married. Legal spouses can visit one another in the hospital with no problem. They also inherit their spouse’s assets automatically, upon death, even when there is no will. Yet, these privileges, which many take for granted, are not available to same sex couples. It is for this reason that same sex couples need an estate plan that spells out their intentions in these specific legal areas, in order to make their choices legally binding, after their death.
Last Will and Testament
Your last will and testament is usually the foundation of your estate plan. It is the tool used to document how you want your property distributed upon your death. Your will designates who you choose to serve as the executor of your estate. In the absence of a will, the court will decide who receives your property, based on state law. Under the law, spouses automatically receive the estate. However, if your partner is not legally recognized as your spouse, he or she will not receive anything, unless there is a will.
Domestic Partnership Agreements
Domestic partnership agreements are a simple alternative to establishing a couple’s intentions regarding their relationship. A domestic partnership agreement is similar to a pre-nuptial agreement for married couples. It describes the process for dividing your property if you and your partner separate, and is considered an enforceable contract in most courts.
Advance directives, also called living wills and Healthcare Powers of Attorney, are essential components of an estate plan. They allow you to identify the person responsible for carrying out your health care decisions. Without advance directives, your partner will likely have no legal authority to make any decisions for you, or to visit you in the hospital.
If you have questions regarding estate planning for same sex couples, or any other estate planning needs, please contact the Schomer Law Group either online or by calling us at (301) 337-7696.