Unsettled Law Makes Estate Planning for Same-Sex Couples Challenging

Not all states recognize the rights of lesbian, gay, transgender, or bisexual (LGTB) partners to make end-of-life care decisions for their significant others.  This can lead to distressing situations where a loved one’s wishes are ultimately disregarded.  However, in California, most of the rights and responsibilities that apply to married couples also apply to same-sex registered domestic partners.  Estate planning for same-sex couples remains complicated because there are many areas of unsettled law.  For example, it is not clear if a certain provision of the California Family Law code imposing the same rights and responsibilities of marriage on domestic partnerships will be validly applied retroactively.  This particular legal question makes it difficult for estate planning attorneys to properly characterize same-sex couples’ assets.  In addition, there are legal distinctions for validly married same sex couples and registered domestic partners.  [To date, same sex couples married in California between June 16, 2008 and November 4, 2008 as a result of the ruling in In re Marriage Cases, remain validly married.]  An example of one such distinction is that the law is not clear on whether same-sex married spouses will be able to report their earnings as community property income on federal income tax returns.  Currently, domestic partners are not allowed to report income as community property when filing federal returns.

An out-of-state example of a same-sex couple’s wishes not being honored arise from a case involving Janet Park.  Park wanted to be cremated after she passed.  However, instead of following the direction of Park’s partner of 22 years, the funeral home followed the instruction of Park’s aunt.  Loss of a partner can be especially devastating to lesbian and gay partners who are not officially recognized as “widows” or “widowers.”  In addition, many LGTB individuals are ostracized from their deceased partners’ family and left to grieve alone.

If you are a lesbian, gay, transgender, or bisexual individual, it is very important to have a strong estate and end-of-life plan in order to ensure that your wishes are followed upon your death.  Don’t leave your partner powerless in making key financial and health care decisions for you when you are unable to make them for yourself.

For more information about securing your future, please contact us, Santa Clara, California Wills & Trust attorneys, at Lonich Patton Ehrlich Policastri.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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