Estate Planning

Careful Estate Planning is essential to the security of any family, particularly for nontraditional families.  While every family is different and every Estate Plan must reflect those differences, there are seven documents that are critical to creating a foundation upon which you may rely to protect those you and your loved ones.  These documents are:
Last Will and Testament – A Last Will and Testament allows the Principal, or drafter of the document, control the distribution of their assets upon death. The law provides that if a person dies without a will, their legal next of kin will be the “distributes,” or recipients, of those assets. In most cases, that would be a spouse, children, parents, siblings, siblings children, aunts and uncles or first cousins, in that order. With a will, Property may be divided and distributed at the discretion of the Principal.
Durable Power of Attorney – This document allows the Principal to authorize another person to make financial decisions for them. It authorizes, among other things, payment of debts, collection of payments, redistribution of assets, withdrawal of assets from a bank account and the sale of property. Because of the important nature of these powers, there is an attached affidavit that the authorized party must complete before the powers become effective. This affidavit is a built-in protection mechanism to avoid misuse of these powers.
Designation of Guardian for Property Management and/or Personal Needs – If a person were to be judicially declared incompetent or incapable of managing their property or themselves, the court would appoint a guardian for that purpose. The guardian is usually a family member. This document allows the Principal to designate who that guardian would be.
Living Will – A Living Will states exactly what measures a person wants or does not want if certain specifically outlined medical conditions arise. It does not, however, authorize another person to make those decisions for the Principal of the Living Will.
Medical Power of Attorney / Health Care Proxy – This document allows a designated person to have access to medical records and make specified medical decisions for the Principal.
Priority Visitation Directive – A Priority Visitation Directive specifies who the Principal prefers to have priority visitation privileges, usually over family members. It tells a hospital administrator, floor supervisor and any other hospital personnel that the possessor of the document shall not be denied access to the hospitalized Principal.
Affidavit of Burial or Cremation – This document ensures that a funeral director or funeral home administrator follows the instructions given them by the person designated in the affidavit.
If you have any questions regarding Estate Planning, please email me at: Anthony@TimeForFamilies.com.

If you own property as a couple, the first thing to know is how that property is titled.  If you are married and your marriage is recognized, then you own in as “Tenants by the Entirety.”  This is the most secure way to own property as a couple because it allows spouses to own property together as a single legal entity with automatic rights of survivorship. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety.  “Joint Tenants with Rights of Survivorship” (JTWROS) is the most secure way for same sex couples to own property because the property automatically passes to the surviving spouse one one dies.  You must, however, keep accurate records as to individual contributions to the property because the IRS considers the first to die as the owner of the property in full.  The last way a same-sex couple can own property is “Tenants in Common” which allows a couple, or additional owners, to own indivisible parts of the property.  Their share passes through their Will when they die, unlike JTWROS, which bypasses probate and goes directly to the surviving owner.

While no one wnats to think about dying, NO ONE wants to think about their relationship failing.  Without a recognized marriage, the protections of divorce will not be available to assist a couple in dividing their assets in a fair and equitable way.  The only way to assure that a court would be able to monitor this difficult process is by the drafting of a Domestic Partnership Agreement.  This is not to be confused with a domestic partnership registry of your city or township.  A Domestic Partnership Agreement is a legal contract drafted and reviewed by attorneys.  The following are the most recognized reasons why a committed same-sex couple should consider drafting a DPA:

1.    DPAs can be used to memorialize the partner’s respective contributions toward the acquisition of major assets, such as real property, investments and so forth, and provide a mechanism for division of assets and liabilities in the event of dissolution of the relationship.  This can also be addressed in a separate document called a “Joint Tenancy Agreement.”

2.    DPAs define financial obligations to one another (and/or to the partner’s, children), both during the partnership and after dissolution.

3.    DPAs may also be useful to prove the contributions of each partner for purposes of estate tax and acquiring stepped-up basis for a deceased partner’s interest.

Other Benefits of Domestic Partnership Agreements

Domestic Partnership Agreements provide strong evidence of the existence of the relationship. This may be relevant for example, to qualify for employment benefits available to employee’s domestic partners.  These agreements are also important because they may provide the basis upon which a court may grant the parties a particular right or benefit ascribed to legally married couples exclusively.  As the struggle for recognition of nontraditional relationships continues, DPAs provide the court with a clear declaration of the intentions of the parties.

Domestic Partnership Agreements also provide objective criteria for determining obligations of parties, the continuing existence and/or termination of the domestic partnership and procedure for termination and division of property. Many such agreements provide for mediation or arbitration of disputes arising under the agreement or its termination.

For more information, check out my Florida Coastal Law Review article on Estate Planning for Same-Sex Couples.