Estate Planning for Your Same-Sex Partner

The laws of most states, as of 2010, do not acknowledge any right of your same-sex partner unless you carry out proper estate planning. Since the partner is not officially considered a spouse, the individual will not receive spousal benefits on any of your inheritance, including Social Security benefits and retirement plans. Therefore, if you would like to assure your partner is protected in the case of your incapacitation or death, you must write that individual into the plans for your estate.

Inheritance of Retirement Benefits

Unfortunately for you and your partner, there is nothing you can do in order to share Social Security benefits. Typically, a spouse would be able to receive an amount equal to at least part of the other spouse's benefits both in life and in death. In the absence of a recognized marriage, these rights are not present. The same is true on retirement accounts. Your partner will not receive the same options as a spouse would in the event of your death. Instead, your partner will qualify as a "non-spouse beneficiary." The good news is you can still list your partner as the beneficiary of your retirement plan. Your partner will have limited options, though, and will not be able to roll over your account into his or her own or elect to receive it in full within five years; both of these options are only offered to a spouse. Instead, your partner will have to receive the payments gradually over his or her life expectancy.

Inheritance of Estate

When you leave behind your estate, the laws of the state you live in govern how much your spouse will receive. In fact, it is not possible to disinherit a spouse in most states. Since you are not legally married to your partner, however, these spousal rights will not impose on your ability to pass on your estate through a will. It is easiest for your surviving spouse if you use a notarial will. This is signed by a public notary and by witnesses, depending on the laws of the state. If necessary, it will be easier to prove this document is legal in probate than other forms of wills that do not require witnesses. Keep in mind that it is nearly impossible to disinherit children under the age of 18. If you and your partner have children, you must assure you follow legal rules to pass down your estate to them.

Incapacity Planning

If you become incapacitated by injury, illness or other issues, you want to assure both your financial decisions and health care decisions can be controlled by your partner, if that is your wish. To do so, you will have to specifically plan to list your partner as the executor of your will and of your living will. It is essential to carry out these tasks prior to your incapacitation. If you generate a will after becoming incapacitated, the will won't stand up to probate, and it will be rendered unable to be executed. The laws of your state will determine the rights your partner will have in the case of your incapacitation, including hospital visitations and other health care choices.

blog comments powered by Disqus