Unique Needs

Same-sex couples face the same challenges as heterosexual couples do when estate planning. Married same-sex spouses enjoy many benefits and are viewed the same as heterosexual spouses for legal and tax purposes. Unmarried spouses, however, have to take a few additional steps to ensure their partner receives the assets as they intended.

Fortunately, same-sex couples can legally marry and thus assume valuable legal rights. Those who chose not to form a legal union, however, may need to employ a few strategies to adequately protect their assets, their partners, and their intended wishes. The good news is many estate planning attorneys have experience devising creative estate planning strategies to do all three, and here are some tips to help you get started.

If you die without an estate plan, the State of California may not recognize your partner as your next-in-line heir if you have no legal union. In these cases, your children are typically your assumed natural heirs. Your partner might not receive other “built-in” benefits surviving spouses receive. For example, unless you are married, your partner will not be able to collect Social Security Benefits under your name. Married spouses, on the other hand, may opt to receive benefits under their spouse's name if those benefits are greater than theirs. Also, assets can be passed down to spouses tax-free upon the asset holder's death. This is not automatically true with unmarried partners.

In reality, the challenges you face are numerous. But marriage is not for everyone. Many same-sex couples decide to not marry for personal reasons. Fortunately, there are some things you can do to ensure your partner will be taken care of when you die.

First, formally name your partner as a beneficiary on any retirement accounts and life insurance policies. This might not be necessary if you are married, but if you are unmarried, it's a relatively simple step to protecting your wishes for your estate.

Second, consult with an estate planning attorney about establishing a trust. Trusts bypass the probate court, saving time and money. The trust beneficiary can access the trust upon the trustor's death. The court does not get to step in and delay the process. But with a will, the court can step in, and other heirs can potentially challenge the will, meaning your partner would not be able to assume ownership of your assets until the court case was over, and that is only if he or she prevails in court.

Third, pay attention to the titling of your house and other pieces of real estate. If you want your partner to remain living in your home when you die, try to get a joint tenancy with right of survivorship, which means your home does not need to pass through probate when you die, and your partner can remain in the home.

These are just a few of the considerations you should address when estate planning as an unmarried same-sex couple. Making sure your assets can pass to your partner without the probate process is vital. You should also consider whether your partner would have the legal right to make decisions for you in case you are incapacitated. Work with an attorney to draft the proper documents to grant them this right. Many couples overlook the importance of this step, but, in the event of a serious illness, your partner won't want to have to deal with uncooperative hospitals or family members.

Estate planning is an important step to take to safeguard your assets and your wishes, no matter your family's shape or form. Anyone who has specific intentions for when they die needs a comprehensive estate plan. But taking that first step can be difficult. The best thing you can do is consult with a California estate planning attorney. An attorney can explain the various estate planning tools that may benefit you and walk you through the process of creating an estate plan that will protect your wishes. No couple should be without the protection of an estate plan.

Do you need to create an estate plan to protect your wishes?  Fresno area estate planning attorney Christopher Martens can help you carefully plan your estate to preserve wealth and protect your loved ones' interests. Attorney Christopher Martens has the skills and knowledge needed to help you ensure your wishes are carried out properly. Serving the Visalia and Fresno areas, The Law Offices of Christopher Martens can provide strategic estate planning guidance. Call our office at 559-967-7386 or email us at [email protected] for a free consultation.