Trust and Estate Planning for Same Sex Couples


The state of New York established legal protections for same sex couples in 2011 with the passing of the Marriage Equality Act, before the 2015 nationwide legalizing of same sex marriage. Even in the face of this record of support, it is still important for you and your partner to establish your wishes in regard to your estate, and to have documents in place outlining what should be done if one of you requires intensive medical or end-of-life care. Legal documents can be particularly valuable for couples who are not legally married, as their relationships can be more vulnerable to family challenges.

An Estate Plan Can Help You Avoid Frustrating Legal Challenges

Creating an estate plan is important for any unmarried couple, but same sex couples can be more vulnerable to outside challenges without formal documents in place. Even married couples can have some understandable concerns that about their susceptibility to legal disputes over assets. By creating a will, you make your desires concerning matters of assets, custody, and other vital concerns clear to everyone.

Without documents in place, the state can begin an automatic distribution of your assets, and it is important to remember that the rules regarding who receives what were put in place before same sex unions gained legal recognition. This can make claims from your partner harder to honor, especially if you are not married.

Establishing Health Care Directives and Power of Attorney

While your will dictates who should receive the different assets you leave behind, documents like health care directives and power of attorney protect you in situations where you might be unable to act in your own interest. Health care directives will specify what you want in a circumstance where you need intensive medical or end-of-life care. As part of your wishes, you can specify what your partner's role should be in making decisions, and their level of access to you. Giving your partner power of attorney establishes that they can act in your interest if there are legal matters you are unable to address. Documents like health care directives and power of attorney can protect you if there is a dispute over your estate before you have passed, or if attempts are made to challenge your partner's place at your side should you be hospitalized and unable to express yourself.

Creating a Final Arrangements Document

If you and your partner have ideas for your final arrangement that clash with what your family members might want, conflict can ensue. Your final arrangements document establishes your wishes for whether you want to be buried or cremated; what type of ceremony you desire; what you want for a burial marker; and who should address the costs associated with these arrangements. While this document may not be considered legally binding, it establishes your wishes clearly, and can put a mercifully quick end to any interference of your final resting plans.

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