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Unique Issues Associated with Estate Planning for Same-Sex Couples

By September 21, 2013Estate Planning

Married couples enjoy many legal benefits not available to same-sex couples. Without the legal association of marriage, many same-sex couples are left unprotected under intestacy laws and are disadvantaged in terms of tax planning devices and medical decision-making.  Because same-sex marriage is not recognized in Arizona or New Mexico, gay and lesbian couples lack the same established tax, inheritance, and employment benefits that marriage bestows.  As a result, these benefits must be created through the use of various estate planning tools.

For instance, while married couples may rely on the safety net that intestacy laws provide, the same cannot be said for same-sex couples. Intestacy laws operate as a kind of default mechanism for the distribution of estates of persons who die without having executed a will. Arizona’s and New Mexico’s intestacy laws, like those of most jurisdictions, make no provision for the unmarried partner of a decedent.  Thus, if an unmarried partner dies without an estate plan in place, the surviving partner will not be provided for from the estate. The property will instead pass to the decedent’s biological family based on local law.

Planning for incapacity is another important consideration.  There are several documents that can confer authority over personal and financial decisions for a non-marital or same-sex couple.  Generally, the spouse of an incapacitated person is consulted when medical decisions are made; absent some type of directive, the unmarried partner of an incapacitated individual may be excluded from such decisions.

Estate planning documents can also be crucial with respect to burial arrangements.  Instructions as to who should be granted possession of your remains upon death is an important consideration. This is because, typically, a decedent’s remains are given to the next of kin. In a state like Arizona or New Mexico, where same-sex relationships are not recognized, the surviving partner will not be deemed a family member and will not be granted authority over the disposition of remains.

There are many unique issues associated with estate planning for same-sex couples- I’ve mentioned only a few.   Careful planning can avoid many of the complications associated with everything from end-of-life issues to providing for a same-sex partner in a tax advantaged manner.

For more information and to assure that your partner is provided for contact our offices today at 888.222.1328 to schedule your free consultation.

Andrea ClausContributed by MH Phoenix Estate Planning Attorney Andrea Claus

About Morris Hall:
At Morris Hall, we have focused our legal practice on estate planning for over 40 years.  Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects.  We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.

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  • Rusty McNew says:

    I am purchasing my partner’s sister’s ½ interest in an a home located in Santa Fe
    The following is needed:
    Establish a Trust with survivor ownership of the house
    Conduct cash transaction to purchase ½ interest in the house and a land survey
    Place the above purchased ½ interest in the house and my partners existing ½ interest into the newly created trust

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