Estate Planning Has Heightened Importance for Same-Sex and Other Couples in Non-marital Relationships

Summary: People in relationships that the law does not recognize, whether they are same-sex or opposite-sex partners, face a very unique set of challenges in ensuring that their preferences and choices are honored by those around them. Proper estate planning can provide substantial benefits in making sure that, if you become incapacitated, your beloved partner can continue to be a part of your life and, if you die, your partner can share in the wealth of your estate.

As of mid May 2014, federal judges had made Oregon and Pennsylvania the 17th and 18th states to allow same-sex marriage. This is a dramatic change, as the Massachusetts Supreme Court became the first state jurisdiction to recognize same-sex marriage only 11 years ago. Common-law marriage has witnessed a change in the other direction. In the last 50 years, five states have passed laws explicitly refusing to recognize this type of relationship. For couples in either of these situations, or any other non-married domestic partnership, their circumstances can be complicated and problematic largely because, in the eyes of the law, they are strangers.

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As one example, in 2007, Indiana courts faced the case of a man whose parents used the occasion of his massive stroke to obtain a guardianship over their son and then refuse to allow his same-sex partner of the last 25 years to have any contact with the man. The man's partner had to battle all the way to the state supreme court just to be allowed visitation.

Regardless of what the statutory law in your state says about your relationship, there are ways to protect yourself and your loves ones. Part of the problem the man in Indiana faced was that he had no estate plan. Thorough estate planning is absolutely essential for any person who has close loved ones with whom he/she shares no legal relationship. A carefully crafted will or living trust can make sure that your partner shares in your estate and you can provide for him/her after your death. If you die without a will, and you and your partner have no legally recognized relationship, your partner gets nothing from your estate.

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Additionally, estate planning documents like powers of attorney are particularly useful for people in these situations, especially if one or both partners have relatives who disapprove. A detailed power of attorney can help make certain that the people closest to you and whom you trust the most are the ones making your decisions for you, not a family member whose decision-making may be skewed by their disapproval of your relationship.  

Furthermore, for unmarried couples co-parenting the legal child of one partner, a comprehensive estate plan can help preserve the continuity of your family. Depending on your state's laws, it is very possible that, if the partner with the legal relationship to the child dies, the other partner will lose all rights to the child, and may not even be able to visit the child, unless a proper plan is in place naming the partner as the child's guardian. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at Legacy Assurance Plan.