Estate planning is important for everyone: most people would prefer to make their own decisions as to who will be in charge if they become disabled, and to make the decision as to who receives their property at death. If a person does not plan ahead, each state has laws that favor persons who will be in charge if that person becomes disabled. And, each state has laws that control who will inherit if a person dies without a will. Married couples are protected by federal and state statutes; same sex couples do not always have similar benefits.
New Jersey’s Domestic Partnership Act provides the same sex community with new rights and protections. However, these rights are still not at the same level that married couples in that state enjoy. As such, proper estate planning still remains a major consideration.
Estate planning is especially important for same sex couples, because that is the only way they can make their preferences known. The following is intended to provide ideas of the estate planning options available to same sex couples.
A Durable Power of Attorney designates another person, an Agent, to handle financial affairs. This may include paying bills, transferring funds between accounts, buying and selling securities, buying and selling real estate, accessing a safe deposit box, and other financial matters. It is an essential part of any client’s estate planning documents. In planning for same sex couples, the Durable Power of Attorney may be more crucial because of the high potential for resentment toward the well partner as they attempt to look after the needs of the stricken partner. The well partner may be confronted by the family members of the ill partner in an attempt to challenge the well partner’s decisions regarding the assets of the stricken partner.
In many respects, the Health Care Power of Attorney is even more important than the Durable Power of Attorney. A Health Care Power of Attorney designates an Agent to make health care decisions for the Principal (the person signing the Health Care Power of Attorney), in the event that the Principal cannot make their own medical decisions. Given the possibility that the well partner will be placed in a difficult position regarding the stricken partner’s family members, a well-drafted health care power of attorney will be crucial to not only address issues of medical treatment, but also for the well partner’s ability to visit and give comfort to the stricken partner.
In future posts I will discuss disposition plans, estate and inheritance taxes, irrevocable trusts and other matters that same sex couples should be aware of when planning their estate.