By Stephen Barardino
Marriage between same-sex partners is not a federally recognized legal status and most states in the US do not recognize such marriages on any level. This means that hundreds of benefits afforded to traditional married couples are lost to same-sex partners in committed relationships. However, through the use of five estate planning tools, same-sex partners CAN have legally recognizable relationships regarding healthcare and financial decision-making authority, creditor-protection, privacy rights, and even guardianship preferences for their children. Those five devices are:
- Cohabitation Agreements
- Advanced Healthcare Directives
- Durable Financial Power of Attorney
- Reciprocal Dynasty Trusts
- Assignments of “Rights of Disposition” of Final Remains
Cohabitation Agreements are essentially contracts entered into by the individuals in a relationship that outline how the individuals will share expenses, financial support and payment of debts. Cohabitation Agreements also divide the ownership of the residence and items of personal property in the event of a break-up or at the death of one of the partners. These agreements can even provide instruction on how the individuals will define their preferences for support, custody or visitation rights for their children. We appreciate that it is not always convenient or comfortable for couples to analyze these matters at the outset of a relationship. However, there is no better time than NOW to make these decisions; a time when both partners are happy, content, and focused on the success of their relationship. The unfortunate reality is that when children are involved, many jurisdictions do not recognize second parent adoptions and similar arrangements for same-sex couples. Cohabitation Agreements ensure that the express intent of the legal parent is clearly stated to guide a court, should circumstances necessitate court involvement in the future.Qualified estate planning attorneys can walk you through the decisions and considerations that go into drafting a successful, comprehensive and mutually beneficial Cohabitation Agreement. The objective here is to outline the goals of the relationship and how each partner desires to maximize the benefits and rewards of being in a socially recognized relationship. Cohabitation Agreements may include, but are not limited to, the following topics:
- Lifestyle and Standards of Living
- Financial Objectives
- Health Wellness
Advanced Healthcare Directives
There are two Advanced Healthcare Directives to implement: (i) Healthcare Power of Attorney and (ii) Living Will. The purpose of the Healthcare Power of Attorney is to appoint an agent to act in one’s place with regard to emergency healthcare decisions in the event that such person is unable to do so. These agents are listed in an order of preference, which means that the first agent listed is the person healthcare professionals are instructed to consult first. When an individual in a same-sex relationship lists his or her same-sex partner as the first agent, the partner is given the legally enforceable right to make these decisions.
The Living Will is the document that makes known an individual’s wishes with regard to the provision of life-sustaining treatment. In other words, it states whether an individual wants a feeding tube (or other similar provision) indefinitely, should such person be considered permanently unconscious. As under the Healthcare Power of Attorney, a Living Will again gives the order of preference. When both documents list the same-sex partner as the first agent, healthcare providers have little room to argue against recognizing this relationship.
Durable Financial Power of Attorney
The Durable Financial Power of Attorney is similar to the Healthcare Power of Attorney in that the Durable Financial Power of Attorney also lists agents in the order of preference. However, the Durable Financial Power of Attorney applies strictly to financial decision-making with regard to those assets that that individual holds in his or her name. When this document is “durable,” it allows the named agent(s) to act even after the signer becomes incapacitated. Typically, a Durable Financial Power of Attorney grants the agent(s) the authority to open and close accounts, to sell real property, to make investments, to access safe deposit boxes and post office boxes, file taxes, and other similar actions. It is possible to make this document as broad or as narrow as is desired. Furthermore, the document can state that the authority of the agent is for a definite period or is without expiration. Each Durable Financial Power of Attorney should reflect the specific wishes of the signer. Pellentesque ut elit at lacus laoreet
Reciprocal Dynasty Trusts
The main purpose of a Dynasty Trust with regard to estate planning for same-sex partners is the creditor-protection of assets that pass from the deceased partner into trust for the benefit of the surviving partner. In addition to providing significant tax advantages to the surviving partner, the same Dynasty Trust can name contingent beneficiaries who can benefit from the remaining assets after the death of the surviving partner. This means the creditor protection can stretch to include the next generation of beneficiaries. It is important to note that this device contemplates specific legal relationships with regard to the treatment of assets during the lives of the partners as well, so the earlier this is put into place, the faster it can work. For more general information on Dynasty Trusts, please keep an eye out for our upcoming article, The Vault: The Unparalleled Protection of Dynast Trusts.
Assignments of “Rights of Disposition” of Final Remains
Generally speaking, an individual has the legally recognizable authority to make a written disposition of his or her final remains. This means that the same-sex partner of the individual can be given the right to specify how the body of his or her deceased partner is to be treated. More specifically, this means that the same-sex partner can be given the right over the biological family of the deceased partner to make funeral arrangements, to have access to cremated remains and to decide the final resting place of the deceased partner. It is absolutely critical that this assignment be made in writing because if no writing is made, state law specifies biological family members over intentional family members.
Failing to plan ahead is simply not an option for same-sex partners. It is possible for same-sex partners to create legally enforceable relationships, but it must be done in advance and the estate plans must be coordinated to ensure maximum protection. AlerStallings LLC is uniquely situated firm in the Columbus area which is equippted to assist with the creation of the FIVE KEY estate planning tools discussed above. If you or a loved one could benefit from advanced planning, please contact AlerStallings at (614) 798-9800, located in Dublin, Ohio. Remember that proper planning TODAY, ensures protection and peace of mind for TOMORROW.