Estate Planning for Same-Sex Couples

On 26th June 2015, the US Supreme Court struck down all state bans on same-sex marriage. This ruling has created a legal precedent in the United States by offering the same rights and protections to all married people of the country, no matter what gender make-up the partnership has. This a huge step forward and has allowed same-sex couples to finally have protections afforded under the law that hetero couples take for granted. 


But what about those who decide against marriage and opt for domestic partnerships instead? Does the law protect and uphold wills from these unions when one partner passes away? Wills.com will explore this topic and give you the answers you need to safeguard your loved ones and make informed decisions for the future. 


“Love has no gender, compassion has no religion, character has no race.” – Abhijit Naskar- neuroscientist and peace advocate

Javier and Robert

Javier* and Robert* met in 1985 and fell immediately in love. They have been together over 35 years and shared a loving relationship and the kind of fantasy life that many of their hetero counterparts only dream of. They had two homes together, two dogs, and the same fight over who was to take out the garbage bins every week, much like long-term couples everywhere. 


The difference is that Javier and Rob never got married. So, when Robert passed away suddenly earlier this year without a will, Javier was left holding a leaky bag, uncertain about his rights and obligations, leaving him not only grief-stricken but neck-deep in lawyer’s fees he could ill-afford and in a didn’t-see-it-coming battle with Robert’s sister over money and possessions.


Marriage vs. Domestic Partnership

As Javier found out, though same-sex unions are now recognized in all states, federal law does not always have the same rules. For example, Social Security benefits and Medicare entitlement are not givens in unmarried same-sex partnerships, they must be reviewed by the Social Security Administration before deciding whether to pay out or not. To be fair, this applies in hetero couplings as well, but it’s just to be aware. 


The property does not automatically pass to a domestic partner, a huge shock for Javier. Robert’s “half” of the house went to his sister, who wanted to be bought out leaving Javier in a very difficult position. 


They had protected other assets by both being on the bank and other financial accounts, but as “unmarrieds”, Javier was taxed on these assets as an estate tax, whereas a spouse cannot be, adding insult to injury. 


They had no children, but if they had, the law of course would have been on Javier’s side and the child would remain him, as both names would have appeared on adoption documents. The pets remained in Javier’s possession. 


Preventing These Pitfalls

Whether married or in a domestic partnership, it is hugely important to write a will, perhaps even more so than for hetero couples. The laws are mostly on your side, but if there is any family drama on either side stemming from your relationship now, rest assured, it will be amplified after death. 


Avoid this by making a will with a company like wills.com. They can walk you step-by-step through the process of will-writing making it a comforting rather than awkward experience. 


When drawing up the will, take things into consideration such as how you would like your final arrangements to look. If you want to be cremated, for example, and your family has a family plot they are dead set (no pun intended) you be buried in, making your wishes known in a will can prevent a nasty battle between your partner and your family. 


To cover yourself with regard to who takes care of your finances and health if you are incapacitated before death, naming your partner as your durable, or long-term, power of attorney can be an assurance your bills are paid and your money stays where it should. 


Health care directives are imperative in same-sex couplings. By creating a living will, your end-of-life health care will be spelled out for healthcare workers so that there is no question how you want to go. This also protects your partner as it leaves your legal status out of the picture and makes clear who you want in the room with you and how you want the end to go down. A bit gruesome, perhaps, but the number of partners banned from death beds due to not making clear what they wanted, and not being legal next-of-kin, is too heart-breaking to mention.  


So make your passing more loving and less controversial, just cover your bases and write your will without delay.

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Sources

SSA.gov

Justia.com

Nolo.com


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