Estate Planning for Same-Sex and Otherwise Unmarried Couples

September 28, 2012
By Dessen, Moses & Rossitto

Because Pennsylvania defines marriage as between one man and one woman, there are challenges for same gender couples and other unmarried couples that must be considered when planning estates for either of these real-life situations.

rings.jpgSimilarly, the Defense of Marriage Act, (DOMA) which is a federal law, defines marriage as only a legal union between a man as husband and a woman as wife. DOMA permits states to deny marriage "type" relationships to same sex couples even though the relationship is recognized in other states. Not even the Constitution can protect a relationship which is legal in one state but not legal in another. A multitude of federal rights are afforded to opposite sex married couples that are denied to same sex couples, including estate and gift tax exclusions, social security benefits, benefits from certain immigration laws, access to federal civilian and veteran benefits, etc.

When considering financial issues, including estate planning, whether you are a same sex couple or an unmarried opposite sex couple, it is important to realize that your relationship does not have the legal impact of marriage in a variety of ways. Therefore, you may want to comingle your assets differently than a married couple. For instance, utilize a joint checking account for mutual and shared bills, while maintaining separate checking accounts for individual or personal needs. Before purchasing a home, a car or even an investment property, figure out the best way to title the property so that you understand who gets the property if you or your partner die.

When deciding on your estate plan, consider preparing a Will. For same sex and unmarried couples, the intestacy laws will not protect the property interests of the surviving partner, so you have to put your wishes into writing if you wish for your partner to inherit.

Some of the issues that unmarried couples may want to approach in Estate planning include:

  1. Funeral instructions are important to delineate if the testator (the person who is drawing the Will) wants to have arrangements made by an individual who is not a family member. Although funeral homes do not always accept funeral directions from a person who is not family, the wishes of the testator should be contained in the Will as a means of direction for all concerned.
  2. If there is an expectant heir who the testator wants to exclude from inheriting upon death, include a clause to reflect that the omission of that expectant heir is intentional, so that there will be no legitimate argument that the omission was an oversight..
  3. Trusts should be considered as a vehicle to protect property left to minors, incapacitated adults or where there is a hostile relationship with one's partner's family.
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  5. In some situations, partners who are able to marry may want to do so in order to allow their partner to avoid the Pennsylvania inheritance tax, which is currently 15% of the net estate where there is no family relationship between the deceased and the heir. Since Pennsylvania does not impose any Inheritance Tax on money or other property received from a deceased spouse, the financial impact on monies left to loved ones who either are or are not your spouse can be significant.
  6. It is equally important to make sure to appoint your partner as your primary "agent" to sign your checks, pursue litigation for you and otherwise handle your personal business affairs if you become incompetent as part of a Power of Attorney. Similarly, appoint your partner as your primary Health Care Agent in a Health Care Power of Attorney so that he or she can obtain your medical records, authorize surgery for you and so on. Finally, prepare an Advance Health Care Declaration (also known as a "living will") so that your partner can act as your surrogate to decide your wishes with regard to making decisions for you if you are "brain dead" or suffering from end-stage Alzheimer's.

Regardless of whether you are straight, gay, male, female, young, old, or anywhere in between, Estate planning is something that we all need to consider. If you have any specific questions about your unique situation, please contact us to assist you.

Hope Bosniak
E-Mail Hope Bosniak
215-496-2914
Bonnie Smith MosesSam Rossittto
E-Mail Bonnie Smith Moses E-Mail Sam Rossitto
215-496-2904215-242-3830