Unmarried couples are a growing part of our population, and their status poses special challenges with respect to estate planning. To the extent that the government doesn’t recognize a relationship, taxes, estate planning, buying property, and dividing assets after a breakup all get messier—and pricier. And, as Bloomberg Businessweek recently pointed out, the number of unmarried cohabiting couples has surged, meaning millions more Americans, gay and straight, are facing these issues. The U.S. Census Bureau estimates 7.5 million heterosexual couples and 620,000 same-sex couples lived together in 2010, compared with 6.7 million heterosexual couples and 476,000 same-sex couples in 2009.
The lack of a legally recognized union or marriage has always been a problem in the event of dispute or estate transfer. With new laws and court rulings increasingly recognizing the rights of live-in couples, rapid change is also making the legal and financial status of couples more confusing.
“It’s a changing area of the law,” according to Linda Lea Viken, attorney and president of the American Academy of Matrimonial Lawyers. “Some places are becoming more hostile to same-sex relationships. Others are becoming more liberal.”
Although the income tax rules generally favor unmarried couples, there is a major Federal transfer tax advantage enjoyed by married couples—the unlimited marital deduction for transfers to a U.S. citizen spouse—which is not available to those whose unions are not legally recognized. When it comes to questions of State (as opposed to Federal) law, even if you are “legally married” in one state, don’t think your problems are solved. You can still face difficulties, especially if you move to a state that does not recognize your marriage.
Whether gay or straight, non-traditional couples need to take a serious look at the legal and economic realities they face. “It’s dangerous to leave matters like custody of your children or holding on to your home to non-specialists, says Howard Forman, an attorney at Turkel, Forman & de la Vega in New York. “It’s heart-wrenching when you see people who think they are protected and they’re not.”
One of my colleagues, Los Angeles attorney Richard Grain, recently recorded a short, but poignant video addressing estate planning for LGBT community. As he relates, same-sex couples should be especially aware of the issues that could arise if one partner becomes incapacitated. The well partner could be left out of the loop when medical treatment or other important decisions are made. The only way to make sure that your hand-picked substitute decision-makers will be able to act on your behalf is to name them in your durable power of attorney, revocable living trust agreement, advance health-care directive, and authorization to medical providers concerning the parties to whom they may release your personal information.