There was recently a lot of buzz in the news about the legalization of gay marriages in the state of New York. Of course such unions are not recognized around most of the country, and this presents some estate planning realities that gay couples must address that are not as important to people who are legally married.
If you were to pass away without an estate plan in place and you were married, your spouse would assume ownership of your property under the recognized rules of legal succession. But gay couples are in a different situation, so they must be very proactive about executing the appropriate estate planning documents.
A vehicle or vehicles of asset transfer will of course be necessary, and though the last will is the most well known and frequently utilized instrument it is not your only choice. When you use a last will to transfer assets the estate must pass through the process of probate. In addition to the fact that probate is time consuming and often times quite expensive, it is a public proceeding and as such the details are a matter of public record. Many would rather keep their final affairs confidential.
In addition, probate provides those who would seek to challenge your will with a forum within which they may do so. There are gay couples who may have concerns about will challenges, and this is another reason why you may want to avoid probate through the creation of a revocable living trust.
Advance health care directives are also especially important to same-sex couples who are not legally married. If you would want your partner to make decisions in your behalf in the event of your incapacitation, you must assert your wishes in this regard through the execution of a durable medical power of attorney.
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