Estate Planning For LGBT Couples

Failing to create your Estate Plan means the State creates your Estate Plan. The State’s plan might exclude our Partner if you are ever ill or incapacitated. Though the law is developing, the defaults rules still favor blood relatives over Partners. Your wishes can easily be ignored. Creating an Estate Plan allows you to include your Partner in financial and medical decisions. All states recognize that you are free to pick your Financial Power of Attorney and Medical Power of Attorney. These people need not be blood family. So, if you select your Partner as your Agent or Surrogate, they serve as your fiduciary no matter what your family might desire.

The answer to this question depends largely upon two factors; your state of residence and how your property is titled.

If you own property jointly or if you have named your Partner as a beneficiary, then that asset passes to your Partner. But, it passes without creditor protection. You could instead set up a protective Irrevocable Trust allowing your Partner to use and spend the assets, but sheltering the property from your Partner’s future creditors and spouses. These rules vary from state-to-state.

If you die without a Will owning assets in your name alone, without designations, your assets are divided using the Rules of Intestacy. These rules ignore your wishes and ignore your Partner. Unmarried Partners, LGBT or not, have no property rights under the Intestacy Rules.

Example: Mr. Jones and Mr. Smith are Partners and own a Philadelphia home together Jointly with a Right of Survivorship. At Mr. Jones’ death, Mr. Smith claims the property as his own. This property is now in his name, so if he has creditors, they can take the property from him.

Example: Ms. Jacobs and Ms. Adams are Partners. Neither have children. Ms. Jacobs owns her Cherry Hill, New Jersey home and dies survived by her mother. Ms. Jacobs had told her mother and her Partner many times that she wanted Ms. Jacobs to receive the home. The New Jersey Intestacy Rules give the home to Ms. Jacobs’ mother, who is free to take the home and remove Ms. Adams.

Example: Ms. Smith and Ms. Jones are Partners and purchased their Bucks County home as Tenants-In-Common. Ms. Smith has a child but has told the child and Ms. Jones that at her death she wants Ms. Jones to receive her 1/2 interest. Ms. Smith dies without a Will, and the Pennsylvania Rules of Intestacy give the 1/2 interest to the child. The child is not obligated to give this interest to Ms. Jones.

Estate Planning for same-sex couples should, at a minimum, include the same Essential Estate Planning Documents provided heterosexual couples. Besides a Will, the “Big Three” include both financial and medical powers of attorney. If you want your Partner making your end-of-life decisions, you must sign a Living Will and Medical Power of Attorney. The hospital may exclude your Partner from making decisions without these documents.

Without making a Will or a Funeral Directive, the state statutes determines who has the right to dispose of your remains and control your funeral.

While these laws may have been designed to limit litigation between family members, they work to the disadvantage of a surviving Partner. However, carefully drafted Will clauses or other Funeral Directive writings allow same-sex Partners to opt out of the default rules and designate the person they want to control their funeral arrangements

Example: Ms. Jones died without a Funeral Directive in Wayne, Pennsylvania. Without this document, despite her repeated requests to friends and family that her Partner dispose of her ashes, the Pennsylvania rules dictate that a deceased person’s surviving spouse, or if there is none, the deceased’s “next of kin” has the sole authority to determine the disposition of the remains of the person, including power over funeral arrangements. Ms. Jones’ mother can bury Ms. Jones in the family plot and exclude her Partner from the funeral.

Example: Mr. Smith died without a Funeral Directive in Marlton, New Jersey. Before his death, Mr. Smith stated that his Partner was to organize a memorial service and arrange for his burial in Burlington County. Without a Funeral Directive, in New Jersey, a person’s surviving spouse or civil union Partner have the authority to arrange for the disposition of remains, followed next by the deceased’s children, parents, siblings, and ultimately other next of kin should there be no more closely related persons. Mr. Smith’s cousin is his next of kin. That cousin is free to cremate Mr. Smith and exclude his Partner from any ceremony.

Example: Ms. Jacobs dies a Philadelphia resident. She executed a valid Funeral Directive designating her mother and her Partner as co-Funeral Directors. Both her mother and Partner have equal powers and work together to enforce Ms. Jacobs’ funeral and burial wishes.

Each state allows you the right to execute a Living Will and Medical Power of Attorney. When you have become incapacitated, the person you appoint in these documents has the power to manage your health care, authorize the cessation of medical treatment and determine who is allowed visitation. Failure to execute these documents triggers state default statutes that favor blood-related family members who may exclude your Partner.

You may appoint anyone as your Surrogate or Agent, including your Partner. Blood relation or marriage are not required. To guarantee your Partner’s visitation rights, then name that Partner or someone who will not exclude your Partner.

You can name your Partner beneficiary of your qualified plans without having to worry about him or her having to liquidate the plan. Federal law allows individuals other than spouses to be the recipient of your 401K and IRA plans in an inherited form, enabling these recipients to delay income tax recognition.

Naming your Partner outright as the beneficiary, however, exposes the assets of the plan to your Partner’s creditors, includes the asset in the Partner’s estate, and gives up your control over who inherits the IRA after your Partner’s death. Forming for your Partner an IRA Trust and then naming that trust beneficiary provides your Partner much more protection.

In the end, all decisions surrounding custody are based on the child’s best interests. But you can provide for an alternate guardian in your Will and clearly state your reasons for believing your Partner would be the appropriate guardian for your minor children. Though custody procedures vary, they will take your wishes into consideration as long as clearly stated.

Furthermore, naming your Partner the Trustee or Protector of Dynasty Trusts established for your children can help keep him involved in their lives. There are other alternatives, so let’s brainstorm about your particular circumstance.

Our attorneys can help you craft the necessary documents to help you ensure that your Partner can stay involved in your children’s lives.