Estate Planning for Unmarried Gay Couples

November 6, 2015

Gay couples making medical decisions in nevadaThere are so many valuable benefits a comprehensive estate plan can provide, especially when it comes to ensuring your estate is passed on to your loved ones upon your death.  A comprehensive estate plan may be even more important for gay couples.  Marriage makes estate planning easier, as there are so many automatic benefits provided for married couples under the law.  For example, if a married couple has not done any estate planning, at least one half of that spouse’s estate will pass automatically to the surviving spouse upon death under Nevada law.  The landmark United States Supreme Court case Obergefell v. Hodges recently held that the fundamental right to marry is guaranteed to same-sex couples, yet not every same-sex couple wants to get married.  All same-sex couples should have the same ability to secure the future of their loved ones, and estate planning is the way to do just that.
Estate planning issues facing gay couples
The way in which an unmarried same-sex couple legally owns property can have a significant impact on the transfer of an estate upon death.  Owning property  in joint tenancy may ensure property will be transferred to the surviving partner, however, this does not protect each partner's respective interest in transferring that property after both have passed away.  Without a comprehensive estate plan, state and federal laws determine who will receive the assets from an estate, how estate taxes are calculated, and when those taxes will be imposed, all of which may conflict with the couple's wishes.  Furthermore, unmarried same-sex couples have challenges in asserting certain rights that are afforded married couples.  There are laws that determine who can make health care decisions for someone else in the case of incapacity and most, if not all, of these laws apply solely to legally married couples.
How gay couples can deal with these inheritance issues
Now that same-sex marriage must be recognized by all 50 states, many of the estate planning obstacles that gay couples were accustomed to facing have been eliminated.  However, not all couples choose to get married.  An experienced estate planning attorney who is familiar with same-sex legal issues can discuss all of the estate planning tools at your disposal and customize your estate plan to meet all of the needs in your relationship.  Whether you choose to create a will or trust, you can address all of your inheritance issues head on.  Through comprehensive estate planning, a same-sex couple can plan the transfer of their assets to ensure that both partners are cared for, and that each partner's loved ones can receive their inheritance after death.  Additionally, documents can be prepared to safeguard each partner's right to make health care decisions in the event of incapacity.
Options to include in your estate plan
Wills and trusts are typically the foundation of an estate plan, because they can provide specific instructions regarding the distribution of your assets after your death.  In your will or trust, you can designate who you want to handle your affairs upon death, as well as who will inherit your assets.  If you do not have a will, trust, or any other estate planning tool, the probate court will determine who receives your property based upon the state law.  When your partner is not a legal spouse, a probate court under Nevada law will not provide any inheritance to that partner without an estate plan.
Domestic partnership agreements can be a convenient way to establish a gay couple’s expectations regarding their relationship.  There are other estate planning options that should be included in your comprehensive estate plan.  Some of these options include a General Durable Power of Attorney, a Power of Attorney for Health Care Decisions, a HIPAA Authorization, a Property Agreement, and an Affidavit Authorizing Order of Burial or Cremation.  These documents allow you to authorize your partner to make any necessary decisions for you, including funeral arrangements, after your death.
If you have questions regarding LGBTQ estate planning needs, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.

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