Estate planning is critical for any couple. In the tragic event of death or a debilitating illness it provides specific instructions in vital aspects of life like inheritance, guardianship and power of attorney. Failing to plan appropriately can result in unintended consequences that have a lasting impact on your family.
This is especially true for same-sex and unmarried couples. Because "marriage" generally requires the legal union of a man and a woman, same-sex and unmarried couples need to understand how they are recognized from a legal perspective, and plan accordingly to ensure their long-term wishes are carried out.
Even in a state where same-sex unions are sanctioned, federal law does not recognize them to be spouses due to the Defense of Marriage Act, which defines marriage as a legal union between one man and one woman. As a result, same-sex couples and unmarried couples are ineligible for certain preferences granted to spouses under federal law. Because they are not considered spouses, same-sex partners and unmarried couples face potential problems with respect to federal and state income, estate and gift taxes. On the other hand, they may be able to take advantage of certain income tax laws that are designed to prohibit or restrict certain transactions between spouses.
Partners in same-sex unions and unmarried couples do not have any of the preferences and rights of spouses in traditional marriages under state law. For example, in the case where there is no Last Will, the surviving same-sex or unmarried partner does not automatically become executor of the estate, nor are they entitled to inherit any of their deceased partner's estate.
If one partner is incapacitated, the other partner is not allowed to use any of their partner's assets for their own benefit without estate planning. This is especially problematic if the incapacitated partner is the main wage earner or owner of most of the couple's assets.
In Tennessee, as with most states, if only one partner is recognized under state law as a minor child's guardian, the surviving partner would be in line behind the child's uncles, aunts and grandparents in being designated "guardian." Again, simple estate planning could avoid this problem completely.
As threatening as these possible problems may sound, they can be easily avoided. It is important that same-sex and unmarried couples understand the intricacies that separate their relationship from a legally recognized marriage, and work with a professional to prepare valid estate planning documents. Taking these simple steps will ensure your wishes will be carried out and can make the difference of a lifetime for your family.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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