Today, in the United States, any couple, whether same-sex or opposite-sex, can choose to get married. However, just as some opposite-sex couples have made a choice not to marry, some same-sex couples may decide that, although marriage is an option for them, it is not the right path for their specific situation. Whether you're a part of a same-sex or opposite-sex couple, if you've decided to remain in a committed but non-marital relationship, then you should know that you and your partner have a different legal relationship than you would have if you were married and this unique situation creates a particularly high need for careful and detailed estate planning.
Everyone has a need for an estate plan but, if you are someone in a committed-but-not-married, or some other “non-traditional” relationship, your specific circumstance gives you an especially high need for putting a detailed plan in place. You should work will all due speed to get a plan in place that includes several planning documents, including powers of attorney. With proper powers of attorney, you can make sure that your partner, or any other person you want to name, will have the authority to make decisions on your behalf if you cannot communicate decisions for yourself.
Obtaining carefully drafted documents customized for you is very important in this situation. Using DIY forms or trying to write up your own documents can potentially create terrible pitfalls for you. Tragically, but undeniably, prejudice is still a reality in our world. If, for example, you are in a non-married, same-sex committed relationship, it may be to your advantage, when naming your partner as your agent, to refer to him simply as “John Doe” instead of “my beloved partner John Doe.” Making just this subtle drafting change may help reduce the risk that an entity will refuse to honor the power of attorney, even though the document is completely legal. Individually customized documents drafted by your estate planning attorney can also help you have the confidence of knowing that your documents conform to your state's specific laws.
Your plan will also need to include a will or a living trust and pour-over will. In the vast majority of states, if you have done no estate planning, then your non-marital partner, no matter how long you've been together, will receive nothing. Most states do not recognize “common law” marriage and have not done so for many years. This means that, in most places, if you aren't married to your partner, the law views your partner the same as a co-worker, neighbor or casual acquaintance. If you die without a plan, the intestacy laws will look for blood relatives to whom to distribute your wealth. This can be a huge problem if, like a fair number of non-married couples, the home you share is owned by exactly one of you. If the legal homeowner dies first, and he/she has done no planning, the home could go to his/her relatives and the surviving partner could be immediately thrown out of the home. To address this problem, you'll need a will, a trust or some other sort of non-probate transfer device to ensure you avoid this worst-case scenario.
If one of you has relatives that disapprove of your relationship, you have an even higher need for planning. Careful planning, in terms of both the creation and the execution of your plan, can help you reduce the chances that your planning goals will be thwarted by a court challenge to your plan. There are ways that you can give your plan extra protection against a claim by your relatives that you did not have mental capacity to create your plan, or that your partner exerted undue influence over you. This risk can be particularly high if you are advanced in age and your partner is substantially younger than you. In these situations, your estate planning attorney can help you sort through the various planning techniques available to you and which ones may help you best address your unique planning needs.