However the road is far from paved. Although California recognizes gay marriage the road has been very rocky. There are still a number of issues to be resolved before federal law will be in complete harmony with State law. Therefore, because the legal landscape is still evolving with regard to gay marriage, it is wise to be mindful of any further bumps in the road. Similarly there is a huge majority of same-sex couples who chose not to marry, depriving them of certain benefits that are now afforded to same-sex couples under the law. Similarly if children are adopted/born into a same-sex relationship, provision needs to be made to ensure that the rights of both parents will be recognized under the law.
Same-sex Couples should consider the following Estate Planning documents to ensure that their interests are being protected.
1. Revocable Living Trust/ At Minimum, A Will:
All same-sex couples should have in place at minimum a will, or better again, a revocable living trust to avoid probate. If you do not make a will or have in place a trust, your property will be distributed according to intestate succession laws. Dying intestate usually has an undesirable effect. This is especially true for same sex couples who have not married (either by choice or due to State restrictions), because intestate succession laws rely on the legal relationship of marriage. If you are not married, intestacy laws ensure that your property will be distributed to your blood relatives. The effect: your loved one will have no right to receive your property.
2. Durable Power of Attorney
All same-sex couples (including unmarried), should establish a durable power of attorney which enables a loved one or friend to act for you in personal, financial and/or business affairs if you become incapacitated. If you become incapacitated without establishing this document, the court will be petitioned to appoint someone to act on your behalf. In the absence of a legal spouse, a biological relative is usually appointed. Perhaps this person would not be otherwise your first choice.
3. Nomination of Guardianship for Children.
All same-sex couples with children should ensure that they have a completed designation of guardianship for any children adopted or born into the family. The designation of guardianship ensures that a surviving parent is able to raise their child(ren) in the event that the other parent become incapacitated (regardless of blood relation). If this document is not in place and the child was not legally adopted by the surviving parent, the surviving parent runs a high risk of losing custody, were the child’s blood relatives to petition the court.
4. Advance Healthcare Directive
Same-sex couples should have in place an advance healthcare directive, designating an agent to make healthcare decisions for them in the event that they are unable to communicate for themselves. The latter is a particularly important document for unmarried couples because, in its absence, your partner will not be able to make decisions on your behalf. Instead, the law generally assigns this responsibility to the nearest blood relative. Not having an advance healthcare directive in place could add further pain to an already emotional situation if your partner’s efforts to promote your interest aren’t recognized by the law.
In sum, the recognition of the majority of US States of same-sex marriages has afforded same-sex couples equal rights. However until such time that Federal law and State law are in harmony, inconsistencies may continue to exist. It is hugely important for same sex couples, married or otherwise, have adequate estate planning in place so to ensure they and their loved one’s interests are protected under the eyes of the law.