Category Archives: Estate Planning

Now That You are Legally Married, Is it Still Important to Have a Will?

15 Sunday Jun 2014

Posted by in Estate Planning, Financial Planning, Marriage

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The short answer is yes.

The long answer is that for many years, LGBT folks have been told how important it is to have a will because we had none of the legal protections of marriage or registered domestic partnership, and the state laws of intestacy (inheritance without a will) left same sex partners high and dry. This lack of any formal legal status in Washington prior to 2007 coupled with a higher likelihood of family members disapproving of an LGBT person’s choice of partner resulted in heart wrenching scenarios. A gay man whose partner died in the 1980’s recently shared with me that right after his partner’s funeral, his partner’s family arrived with a moving van and emptied their house of anything that he could not produce a receipt for, and without a will in place there was nothing he could do about it.

Is having a will any less important now that same-sex couples can be legally married? In essence a will is your set of instructions about who should get your property when you die, and it is often part of a larger overall estate plan which might also include non-probate assets such as life insurance policies, retirement accounts, or trusts. Today, if you are legally married or partnered and you die without a will or other estate plan in place, your surviving spouse or partner will not be as badly off as before. However without a will, the State of Washington still might not distribute your property in a way that either of you would have wanted. It is not as simple as your spouse getting everything. Exactly how your property will be distributed will depend on who all your surviving legal family members are.
Here are the basic intestacy rules:

  • If you have a spouse or registered domestic partner and
    • You have children: When you die, your spouse or partner will get your share of your community property, with the result that all of what you owned together now belongs to him or her. (For more discussion of what constitutes community and separate property, see my last post: http://equality365.com/2014/05/how-does-legality-of-marriage-change-things/ .) In addition, your spouse or partner will get half of your separate property, with the other half getting divided amongst your children.
    • You do not have children (or do not have a legal parent relationship to the children in your life): Besides receiving your share of community property, your spouse or partner will get three quarters of your separate property, and the remaining quarter will go your surviving parent(s). If there is no parent, the remaining quarter goes to your surviving sibling(s). If there is no sibling, all of your separate property goes to your spouse or partner.
  • If you do not have a legal spouse or registered domestic partner and
    • You have children: All of your property will be divided amongst your children.
    • You do not have children (or do not have a legal parenting relationship to the children in your life): All of your property will go to your surviving parent(s). If there is no parent, all will go to your surviving sibling(s), then to grandparents, then aunts/uncles, in that order.
  • You are in a long-term committed relationship but do not have a legal status together.
    • The rules under #2 apply. When it comes to intestacy, the law does not recognize the family roles and relationships that members of the LGBT community have claimed and created in all the years before legal recognition of those relationships became available. Without a will or some other non-probate beneficiary designation naming your partner, he or she will get nothing.

How this might work is best illustrated by an example. Let’s say you are married without children and your primary asset is your house which you bought before you got married. Under community property law, the house would be presumed to be your separate property. Applying the rules of intestacy outlined above, your spouse would receive three quarters of the house, and the remaining quarter might go to your mother or brother, depending on who is alive. This could become complicated for your surviving spouse!

Drafting a will is one of those tasks that almost everyone finds a way to avoid and put off for another day. Especially if you are in reasonably good health, there is almost always something else to take care of that seems more urgent and pressing. Most of us do not like to dwell on it, but one certainty in life is that none of us know what tomorrow may bring, and sometimes what tomorrow brings does not give us the chance to go back and take care of after the fact. The good news is you can create greater peace of mind for both you and your loved ones now by taking care of your estate plan now. You can do this by consulting with an estate planning attorney, and you can also learn more here.
Disclaimer: This information is for educational purposes only and is not a substitute for competent legal advice from a licensed, professional attorney regarding your specific situation.
Eleanor Doermann is an attorney providing estate and life planning services for all ages and stages of life, as well as public benefits advocacy. As a long-time member of the Seattle LGBT community, she has a special interest in and passion for educating individuals and couples about the ramifications of post-DOMA marriage equality laws. Eleanor came to the practice of law after a 25-year-career as a physical therapist and opened Pathway Law, PC in south King County in 2013. Learn more at www.pathwaylaw.net, www.facebook.com/pathwaylaw, or by calling 206-499-3289.

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Estate Planning for the LGBT Community – Why You Really Need to Do it

23 Wednesday Jan 2013

Posted by in Estate Planning, Financial Planning

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I have the privilege of practicing law in Washington State, which, as you are no doubt aware, recently joined the ranks of States recognizing gay marriage. I cannot overstate how proud everyone that worked to achieve this goal is, and rightly so, but this change in law has had an interesting side effect. I am now asked, on a near daily basis: “Now that gay marriage is legal, why should gay couples be any more concerned with estate planning than straight couples?” 

My response to this is that, first off, straight couples should be far more concerned with estate planning than they generally seem to be, and second, as important as Washington legalizing gay marriage is, it really hasn’t changed anything for practical purposes. Before Washington legalized gay marriage it was among the ‘everything but marriage’ States, which meant that gay couples in domestic partnerships could already take advantage of all the benefits that straight married couples could, as far as Washington was concerned. The real source of many of the problems that gay couples faced was, and remains, the federal government.

No matter what State they may reside in, and no matter what stance that State takes towards gay marriage, the federal government still considers gay couples to be legal strangers, that is, unless they take steps to circumvent that default status. The obvious problem that this causes has to do with your taxes, but there are others that many people fail to consider. For example, imagine that a married gay couple live in Washington State without an estate plan in place. One of them used to live in Texas, and still owns a fair bit of property there.  Imagine a terrible accident occurs, and the individual who owns property in Texas dies. If they had been a straight couple, the surviving spouse would automatically inherit either half or all of the property in Texas, depending on when it was purchased and a few other factors.  As a gay couple, the surviving spouse would have no right to the property in Texas at all, and instead that property would automatically pass to the deceased spouse’s surviving relatives, regardless of what their wishes had been.

This scenario happens unfortunately frequently, because most States that do not allow gay marriage also do not recognize gay marriages from other States. This problem has also resulted in several high profile instances, in which, a married gay couple were visiting a State that does not recognize gay marriages, one of them became injured or ill, and the other was refused hospital visitation rights, or the rights to make healthcare decisions for their disabled spouse.

When I tell people about these sorts of situations I often hear “Well, what can you do if a State won’t recognize your marriage?” The answer to that is “A lot.” Even States that do not recognize gay marriage do recognize community property agreements and powers of attorney, and these, along with a few other important legal instruments will guarantee that both you and your spouse are protected, even if your marriage isn’t.

Hopefully the Defense of Marriage Act will soon be recognized as the inherently unequal and bigoted piece of legislation that it is, but until that happens a good estate and disability plan is the gay couple’s best defense against outdated laws.