Despite changing laws around the country, not all same sex partners enjoy the same protections as other couples, especially when it comes to estate planning. When the U.S. Supreme Court declared the Defense of Marriage Act unconstitutional, married same sex couples living in New York were legally afforded the same rights as other married couples. This includes the same marital benefits under state and federal estate planning laws.

However, just because the law now grants those rights, it does not mean they are always easily given. A gay Washington DC man is currently battling the family of his deceased partner for his share of the estate as a common law spouse. Although New York does not recognize common law marriage, couples coming from other states that do – and believing they are married in the eyes of New York law – can mistakenly believe their marriage will be automatically recognized after a partner dies.

Given the difference in laws from one state to another, it is vitally important to set up an estate plan that will protect your same sex partner – whether or not you are married – as well as other loved ones.

Estate planning necessities

If you are in a same sex relationship and wish to provide for the most important person or people in your life, these necessary documents will help ensure that your wishes are properly carried out after you are gone.

• Wills: If you die without a will, intestate laws automatically divide your assets. However, they may not go to the people you want them to so it is much safer for you to put your wishes into writing. A will allows you to choose who obtains your assets – including personal property – and allows you to designate guardians for your minor children. If you or your spouse have children from prior relationships, a will allows you to provide for them as well.
• Trusts: Living trusts are a great way of distributing financial assets to family members, charities and other significant people or organizations. Trusts also provide a way to avoid the expense of probate upon your death.
• Other documents: Whether for financial or health care decisions, powers of attorney can allow a person of your choosing to handle your affairs if you are unable to attend to your own needs. Living wills and health care directives can guarantee that your end-of-life decisions are handled according to your wishes.

An estate planning attorney can help

Consulting an experienced estate planning attorney may be the most important step when providing for your loved ones. A lawyer knowledgeable about Medicaid provisions, probate avoidance and other issues of estate administration can help you set up a plan that works for you and your family.