Estate planning is critical for any couple. In the tragic event
of death or a debilitating illness it provides specific
instructions in vital aspects of life like inheritance,
guardianship and power of attorney. Failing to plan appropriately
can result in unintended consequences that have a lasting impact on
This is especially true for same-sex and unmarried couples.
Because "marriage" generally requires the legal union of
a man and a woman, same-sex and unmarried couples need to
understand how they are recognized from a legal perspective, and
plan accordingly to ensure their long-term wishes are carried
Even in a state where same-sex unions are sanctioned, federal
law does not recognize them to be spouses due to the Defense of
Marriage Act, which defines marriage as a legal union between one
man and one woman. As a result, same-sex couples and unmarried
couples are ineligible for certain preferences granted to spouses
under federal law. Because they are not considered spouses,
same-sex partners and unmarried couples face potential problems
with respect to federal and state income, estate and gift taxes. On
the other hand, they may be able to take advantage of certain
income tax laws that are designed to prohibit or restrict certain
transactions between spouses.
Partners in same-sex unions and unmarried couples do not have
any of the preferences and rights of spouses in traditional
marriages under state law. For example, in the case where there is
no Last Will, the surviving same-sex or unmarried partner does not
automatically become executor of the estate, nor are they entitled
to inherit any of their deceased partner's estate.
If one partner is incapacitated, the other partner is not
allowed to use any of their partner's assets for their own
benefit without estate planning. This is especially problematic if
the incapacitated partner is the main wage earner or owner of most
of the couple's assets.
In Tennessee, as with most states, if only one partner is
recognized under state law as a minor child's guardian, the
surviving partner would be in line behind the child's uncles,
aunts and grandparents in being designated "guardian."
Again, simple estate planning could avoid this problem
As threatening as these possible problems may sound, they can be
easily avoided. It is important that same-sex and unmarried couples
understand the intricacies that separate their relationship from a
legally recognized marriage, and work with a professional to
prepare valid estate planning documents. Taking these simple steps
will ensure your wishes will be carried out and can make the
difference of a lifetime for your family.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is important that you have updated financial powers of attorney and New Hampshire Advance Directives, clearly nominating your spouse (or another) as the primary person to make decisions in the event of incapacity.