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.
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.
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 of America 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 www.legacyassuranceplan.com.
