Despite the recognition of same-sex marriage in Indiana, it is still important for both married and unmarried same-sex couples to have estate planning documents in place. In her recent presentations for the Indiana State Bar Association on the topic of “Estate Planning for Same-Sex Couples,” Rebecca Geyer discussed key estate issues for lesbian and gay couples, both married and unmarried.
At Geyer Law, our estate planning attorneys often explain that our document “tools” fall into two general categories: “Lifetime documents” govern events during life up until death, while “Post-life documents” govern what happens with our assets after death. Here are some of the primary lifetime document “tools:
Durable Power of Attorney: With this document, you – or your partner or spouse – are granting someone the ability to handle your financial affairs on your behalf should you become unable to handle transactions on your own. This document avoids the need to have the court appoint a guardian.
Health Care Power of Attorney: If you become unable to make health care decisions for yourself, family members with differing viewpoints could give conflicting directions to health care providers. Naming each other as health care representative means your wishes will be carried out in the way you’ve discussed.
Visitation Authorization: This document designates who is authorized to visit should you become hospitalized or institutionalized. This is particularly important for non-married same-sex partners, especially if family members may not be supportive of your relationship and may try to keep your partner from visiting if you are hospitalized or in a medical facility.
Living Will: If you and your partner/spouse have specific preferences as to whether or not your life is artificially prolonged by tubes and machines, Indiana law gives you the right to set forth your specific wishes as to whether or not life-prolonging procedures should be withheld or withdrawn. Along with the Health Care Power of Attorney, a Living Will is known as an Advanced Directive.
Funeral Planning Declaration: This document allows each of you to designate the other to carry out your instructions regarding the disposition of your remains, who you wish to provide funeral services, and what ceremonial arrangements you desire.
Domestic Partnership Agreement: If you are unmarried domestic partners, this document is a way to establish your joint intention about the relationship (similar to the pre-nuptial agreements used by traditional couples). The agreement sets up a process for dividing your property in the event you decide to separate.
Even if you previously had estate planning documents drafted, make sure you have your documents reviewed in light of recent law changes. Now that same-sex marriage is legal throughout the United States, your spouse may be entitled to a survivor’s allowance, the right to elect against your will, and may even be required to sign a waiver in order for you to leave benefits to someone other than your spouse. It is a good idea to have your documentation reviewed to ensure that it still accomplishes your goals and that no changes are needed to make them current.
In serving many same-sex couples at Geyer, what we’ve found is that putting “lifetime documents in place is a path towards peace of mind. This aspect of estate planning is about expressing what you want while you’re alive, both as individuals and as a couple.
– by Rebecca W. Geyer of Rebecca W. Geyer & Associates