Society changes rapidly, and we’ve seen the evidence in our own lifetimes. There has been both technological evolution – there are many people alive today who can remember a childhood when television simply didn’t exist – and cultural evolution. Only a few years ago, same-sex marriage was still a taboo subject with little serious support. However, the last two years have seen a sudden dramatic shift, with the Federal government and many States officially recognizing same-sex marriage. At the same time, many other forms of “alternative” families have become increasingly common, including single parents and heterosexual couples who choose not to get married even when they have children.
Alternative families present an estate planning challenge, because the law moves much more slowly than society’s attitudes, and most of the legal framework designed to protect and regulate family estates still only recognizes next of kin. When couples are not legally married, an unexpected disability or death can see their assets including their home, their investment and retirement funds along with other important decision making placed under the control of someone other than the life partner. The solution to this potentially devastating dilemma is careful estate planning – in fact, estate planning is probably more important for the “alternative” family than anyone else.
In a nutshell, estate planning is a collection of legal directives detailing how you want to be cared for in the event of your disability and how your assets and wealth should be distributed in the event of your death. A comprehensive plan will include a durable financial power of attorney, health care power of attorney, living will and either a will or a trust, among other important directives. Your plan should clearly set forth your wishes and desires including how property and other assets should be distributed among a surviving partner and/or children. Keep in mind that in your state, you may not enjoy any legal protection as a family unit, meaning that your life partner may not have automatic authority to make decisions on your behalf. If you have minor children, you will also want to include trust provisions for their care and the selection of an appropriate guardian. A failure to properly plan can result in unintended results – parents or siblings making decisions and your managing estate assets rather than those persons you would have chosen.
Estate planning is often viewed as a chore that can be endlessly deferred. No one can imagine the unthinkable happening to them, and often people assume that a life built together means something under the law. The fact is, your state may give no legal recognition to your relationship with a lifetime partner and inadequate protection for minor children. The time to make your wishes clear and to anticipate every potential problem is now, while you have the ability to confer with an expert and plan your estate properly. Planning is important for all families, but especially for alternative families.