As of May 2009, the states that allow for gay marriage are: Connecticut, Iowa, New Hampshire, Maine, Massachusetts, and Vermont.

On May 26, 2009, the California Supreme Court decided, in a 6-1 vote, to uphold Proposition 8, which amended the California constitution to limit marriage to a man and woman. The California Supreme Court also decided that the marriages of an estimated 18,000 same-sex couples who wed before Proposition 8 took effect will remain valid marriages in California. While this is good news for those partners, the decisions does nothing for the thousands of unmarried gay couples in California – nor does it provide for recognition of a valid California marriage among gay partners in a state other than California.

The state of the law in California, as well as the rest of the country, makes it more important than ever for GLBT partners to have a comprehensive estate plan in place. Without a comprehensive estate plan in place, a GLBT partner may be precluded from participating in the care of his or her incapacitated partner or inheriting upon the death of a partner.

This need for an estate plan for GLBT partners is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

The death of a GLBT partner without proper estate planning will result in the blood relatives of the partner inheriting and the surviving partner without any rights. In addition, the blood relatives of a GLBT partner will have priority for appointment as the administrator’s of the deceased partner’s estate.

Registered Domestic Partnerships—an Estate Planning Perspective

Many states and local jurisdictions, including California, offer domestic partnerships, civil unions, or similar methods of legal recognition for same-sex relationships. The rights and responsibilities of registration vary substantially from jurisdiction to jurisdiction. In California, a registered domestic partner has most of the same rights, duties and liabilities as a legally married spouse. California Registered Domestic Partners own property acquired during the partnership as community property. Legal separation after becoming registered domestic partners in California will usually requires a dissolution proceeding in the Family Law Court.

For more information about California Registered Domestic Partnership, click here. To register as a California Registered Domestic Partner, click here.

Before taking advantage of any of these state arrangements, be sure to speak with a qualified estate planning attorney who is familiar with the unique legal and personal needs of the GLBT community. That attorney can counsel you on the implications of registration and advisability of registering in your unique situation.

The Problems Estate Planning Solves for the GLBT Community

A GLBT couple can avoid numerous problems through have a comprehensive estate plan in place, which would include:

• Advanced Health Care Directive. An Advance Health Care Directive can avoid the potential problems of an unwanted blood relative controlling the health care decisions of an incapacitated GLBT partner. Without an Advance Health Care Directive, a GLBT or unmarried partner may not be able to have any input into the health care decisions of his or her incapacitated partner. The Advance Health Care Directive allows the incapacitated partner to select the primary and contingent persons who will make health care decisions for him or her as well as designate the level of care desired in the event the incapacitated partner is terminally ill and incapable of enjoying any quality of life. The Advance Health Care Directive can also contain information regarding your preferences regarding organ donation, personal care and living arrangements.
• HIPAA Authorization Form. HIPAA, the federal Health Insurance Portability and Accountability Act, prohibits your doctor, hospital and other health care professionals from releasing your protected health information. While well intentioned, this law often makes it difficult for your loved ones to speak with your health care providers and obtain information about your ailments. The HIPAA Authorization Form allows you to pre-designate the persons you want to give permission to speak with your doctor and other health care professionals providing services to you.
• Durable Power of Attorney for Property. A DPOA allows you to designate the person or persons who will have control of your finances in the event of your incapacity. The durable power of attorney allows you to continue to pay bills, access bank accounts, and speak with companies or organizations the incapacitated partner has continued dealings with. Not all durable powers of attorney are the same. Depending on your circumstances, you may need a DPOA that contains provisions for dealing with retirement assets, such as IRA and 401(k) plans; which empowers the agent to lease, sell and encumber the principal’s real property, change a beneficiary designation on an annuity or life insurance policy or modify an existing trust and/or create a new trust. In addition, in cases where long term Medi-Cal or Veterans Aid and Attendance eligibility may be needed in the future, the DPOA should contain provisions authorizing the agent to transfer or gift the assets of the principal, even if such transfer would be considered an act of self-dealing.
• Last Will and Testament. A Will allows you to appoint who in charge of your estate after your death and designate the person(s) and manner in which the person(s) will receive your assets. Many persons are under the misimpression that a Will avoids probate. This is not true. For more about probate, click here. So if your estate is large enough, you may want to have a trust included as part of your estate plan. If you have a trust prepared, your attorney should also include a “Pour-Over” Will as part of your estate plan. The Pour-Over Will acts as a safety net to get your property into your trust in the event you do not properly fund your trust while you are alive (see explanation below).
• Revocable Living Trust. A revocable living trust allows you to plan the management of your finances both during your incapacity as well as after your death. A revocable living trust is like a treasure chest that holds your assets. The trustee is the person or entity that has the key to your treasure chest in the event of your disability or death. Because title to your assets is owned by the revocable living trust, there is no “estate” to probate upon your death. There are many low-priced purveyors of revocable living trusts, but these companies typically will not assist with transferring your assets into your trust after you execute it. If your assets do not get into your treasure chest while you are alive, your heirs will be forced to probate your estate, and that bargain revocable living trust that you had prepared will turn out to not be such a bargain after all.

A comprehensive estate plan ensures your assets are distributed to whom you want, when and how you desire. A comprehensive estate plan can also guarantees privacy as well asset protection for your partner as well as your designated beneficiaries after you are both gone. Proper estate planning also assures that any minor children born to or adopted by a GLBT couple are raised by the persons designated under the plan and that such children are care for in the manner the couple designates.

Many GLBT couples are unaware that there are no spousal benefits for their partners. (unless registered as a domestic partner in California). A comprehensive estate plan will assure that correct strategies are used to assure partners have management and inheritance rights, avoid unintended beneficiaries, unnecessary income and estate taxes, and court involvement.

Consult the Experts

No other law firm in the Inland Empire has more experience in estate planning for gay, lesbian, bi-sexual and transgender partners. We are very familiar with the Registered Domestic Partner laws in California and can advise GLBT couples as to whether registration is right for them Our attorneys are Certified Estate Planning, Trust and Probate Law Specialists and Certified Taxation Law Specialists.