REAL ESTATE

Domestic Couples Need to Say “I Do” to Estate Planning

By Michael Laurence

MAY 2008

No one likes to think about their own demise, much less deal with the difficult and often emotional decisions associated with estate planning. But for same sex couples, the process is essential, even more so than for straight couples. The reason: if a spouse dies without a will, the law decides financial and other issues in favor of their immediate family members. But domestic partners need to spell out their wishes in writing if they want to make sure they provide for their loved ones.

Consider this hypothetical but all-too-common scenario. Karen and Carole have been in a committed relationship for a dozen years, living together in Karen’s home. But Karen’s parents and family members don’t approve. When she falls unconscious, and is hospitalized with a life threatening illness, her parents don’t even want Carole in the hospital room, much less making medical decisions. Since Karen’s wishes aren’t in writing, Karen’s parents have primary authority, by law, regarding the extent of Karen’s medical care, even though their relationship has been strained for years. Her mother and father get to decide her medical care, including life and death decisions like “pulling the plug.” If Karen passes away, they control who handles her estate, and can even lock Carole out of the house. If Karen has sole custody of any children, her parents decide their future direction as well, without Carole’s input.

“These kinds of situations can be avoided by dealing with the issues before a crisis hits,” says Brian Hundertmark, estate planning attorney at Garson Claxton, a Bethesda, Maryland law firm. “It’s vital for domestic partners because they don’t receive the protections married couples receive.”

Hundertmark points out that in some jurisdictions, including Washington, D.C, Carole would have some rights if she and Karen were legally recognized as domestic partners. But if problems develop with Karen’s relatives, Carole might have a legal fight on her hands. “Going to court is about the last thing you want to be doing at a difficult time like that,” says Hundertmark.

There are several vital steps same sex partners need to take to protect their interests. First is the creation of a last will and testament, which decides key issues such as the distribution of assets and the associated tax consequences. It outlines a number of personal decisions, from the long term care of children to funeral arrangements.

“Certainly we recommend these documents for heterosexual couples as well,” says Hundertmark. “But here’s the difference. If a married spouse dies without a will, the laws generally say the surviving spouse gets about 50% of the estate. But take the same scenario with a same-sex couple. Without a will, the law usually ignores the unmarried partner. Their estate could easily end up going to the person’s family, no matter how relationships with various family members may have been.”

Another key document is an Advance Medical Directive (AMD) that clearly identifies a person’s agent for making important health care decisions if they’re incapacitated. The AMD also sets forward a person’s end of life decisions.

If a person is alive, but incapacitated, there’s the issue of who handles their financial matters. Often, a joint bank account is enough to give a partner some legal say so. A better solution is a document called a Durable Power of Attorney (DPOA). It names the person who acts as the agent or guardian in those cases.

The overall process is time consuming, detail-oriented and can often evoke difficult emotions. Hundertmark advises clients to focus on their partners. “If something happens to you,” he asks, who do you want to be the decision maker, or to receive your assets? Concentrate on taking care of the person you love.”

Attorney Brian Hundertmark can be reached at Garson Claxton at (301) 280-2700 or at bhundertmark@garsonlaw.com.