Basic Estate Planning for Same-Sex Couples
Currently, 33 states plus the District of Columbia now allow same-sex couples to get married legally, and to have that married recognized. However. That means 17 states do not, including Georgia. The fact of the matter is, same-sex couples face a number of unique considerations when it comes to creating an estate plan. What follows are some of the considerations that same-sex couples have to make when putting together an estate plan that many other couples, with the benefit of either licensed of common-law marriage, do not.
The Will
At the heart of any estate plan is the will. A will is an extremely powerful document that you can use to do almost everything that you will need to do to make sure your estate is taken care of properly, based on your wishes. With a will, you will be able to direct who gets your assets according to your wishes; you'll be able to nominate a guardian for your children, if that is an issue. You will also be able to arrange for a responsible adult to manage any assets you want to leave for your children. You will also be able to name exactly the right executor, and instruct that executor exactly how to handle your estate.
What makes a will even more powerful, however, is what happens if you don't have one. If you die without a will, the state will make all of the decisions with regard to what happens to your assets. Anyone who dies intestate, which means without a will, is subject to your state's intestate succession laws, which is almost always a bad thing for same-sex couples. Most such laws rely on blood relations or the legal relationship that exists when two people are married. If you're not married, or are not able to get married in your state, it is entirely possible that your partner will have no right to any of your property unless you leave behind a will with very detailed instructions.
Avoiding Probate
The legal process of wrapping up your estate and distributing it is called probate. This process can be extremely long and very expensive, and it rarely serves as a benefit to the estate. There are ways to avoid probate, and a good estate plan will help you do just that. Avoiding probate is especially difficult for same-sex couples in states without same-sex marriage laws, because the most common way to avoid probate is by passing an estate on to a spouse. Because of this, same-sex couples should consider a number of other probate avoidance techniques, including living trusts, joint ownership of property and transfer on death accounts, registrations and deeds.
Health Directives
An especially difficult thing for same-sex couples to deal with has to do with health directives, especially when it comes to end-of-life healthcare. Quite often, a person gets sick and was unable to speak for himself when it comes time to decide how you want the end of your life to go. A health care directive is a very important thing to have if you want to make your wishes known with regard to this very important issue.
Health care directives have two parts. The first part is the living will or declaration, which allows you to state, in very strong and precise terms, exactly what you want and don't want to happen at the end of your life. The second part is a health care power of attorney, with which you get to name a specific person whom you trust to make health care decisions for you, should that become necessary. These two parts work together to give healthcare professionals extremely explicit instructions with regard to who makes decisions regarding care, regardless of the legality of the relationship.
A Financial Power of Attorney
This is another extremely important aspect of an estate plan that all same-sex couples must consider. A financial power of attorney gives a specific person power over your finances at a time when you may become incapacitated, either temporarily or permanently. There are two types of powers of attorney. A limited power of attorney covers a specific purpose or time and has a limited scope. A durable power of attorney, on the other hand, can take care of your finances whenever you become incapacitated or are incapable of taking care of your finances yourself. The advantage to either of these is that you get to decide who takes care of your financial matters, and not the law.
Final arrangements
Making final arrangements should be a part of everyone's estate plan if they want to have control over that aspect of their life. A final arrangements document allows you to make your wishes known, with as much detail as you want. For instance, you may want to specify whether you want to be buried or cremated. You can leave behind detailed instructions with regard to any ceremonies you want to happen. You can even specify which casket or urn you want to end up in, and what happens to that. While such a document is not legally binding, making it known that you want your partner to take care of all the arrangements could be very important to your loved ones. If you leave it to the state, that responsibility will likely fall on the next of kin, who may not even know what you want.
Same-sex couples have a number of unique challenges when it comes to planning for the end of their lives, and a good estate plan is absolutely necessary to make sure their exact wishes are carried out.
