Estate Planning for Unmarried Partners Regardless of Gender

February 23rd, 2015 by beasleyferber

As most everyone knows, same-sex marriage is legal both in Massachusetts and in New Hampshire, as well as in 35 other states.  For this reason, and because the federal Defense of Marriage Act was ruled unconstitutional by the Supreme Court, the legal/estate planning issues pertaining to same-sex spouses has largely been eliminated.

What about  long-term partners (regardless of gender) who are in a committed relationship, and who living together essentially as spouses, but who are not married?  What estate planning issues do they need to be concerned with?  First, these persons absolutely need to have powers of attorney for both financial and medical issues.  If one partner becomes physically and/or mentally incapacitated, and if these legal documents have not been done, then the other partner might need to go to probate court and have legal proceedings instituted to get the necessary authorization to make financial and medical decisions.  Because they are not married, it is possible (especially if there is an objection from other family members) that the court might not grant the authorization sought.

Additionally, committed partners need to have at least a will, or, even better, a revocable trust, to state what would happen to their assets when the second party dies.  Think about what would happen if there is no will or trust. Let’s say that John and Mary are partners,  have children of their own from prior marriages, and own their assets jointly.   They have no will or trust.  It is their desire that on the second death, half of the assets go to each of their families.  John dies first.  Because the assets are joint, they would all go to Mary.  On her death, however, the assets would go 100% to her children, and John’s would be left out in the cold.    In order to avoid this situation, or similar situations like it, John and Mary absolutely need to make sure that their wishes are expressed in a valid legal document.


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