Same Sex Couples Estate Planning Overview

Jun 30, 2011
Estate Planning Living Trusts News

Written By Stephanie Lane, Sr. Client Resource Director

What happens when a domestic partner becomes incapacitated or dies?

In reality, it can be devastating to both the partner and their children. Not only at the time of death, but also while living and incapacitated. Without proper planning, you basically give up control of your estate and management of your well being upon incapacity. Even a Will is not going to fully protect your loved ones, but it will certainly open the door to challenges from “other” interested parties, through a costly and time consuming Probate process, open to court records. Without an estate plan in place, the state will provide a plan referred to as “intestacy”. Under these laws, your estate will pass to biological relatives under the traditional family model. In California, AB 205 (The Domestic Partner Rights and Responsibilities Act of 2003), effective January 1, 2005, made substantial progress in reversing some of these laws. To learn about AB 205, go to

Here is an estate planning perspective from AmeriEstate Legal Plan, Inc.

Various states offer legal representation for domestic partnerships, with the rights and responsibilities varying from jurisdiction to jurisdiction. A marriage allows concrete legal and tax benefits to both a husband and wife; however, the laws do not recognize the rights and privileges for same-sex couples in many areas. What you need to know:

  • One should not solely rely on intestacy laws in place of an estate plan.
  • Never assume that because you are registered domestic partners that will be enough proof of your intent as to what your partner will inherit.
  • On a Federal level, Domestic Partners are not recognized, thus taxes, including income, gift, estate and property taxes must be addressed appropriately.
  • Legal Documents you should be aware of: wills, revocable living trusts/ pour-over wills, beneficiary designations with contingencies, durable powers of attorney for asset management, advance healthcare directive, domestic partner agreement, parenting agreement, domestic partner registration with legal counsel suggested.

Is there a solution that AmeriEstate Legal Plan, Inc. offers?

Yes. By creating your Domestic Partners Revocable Living Trust, as a Trustee being the manager of your trust assets, you control what happens to your estate, how it will be distributed, and name a guardian for your children in the event of incapacity, or death. This can be for both Registered and Non-Registered Partners. Best of all, it’s private and confidential, bypassing the Probate process. Your Healthcare Directive will avoid potential problems by naming your ‘attorney in fact’ allowing your partner access to you and representing your wishes to your doctor during incapacitation or hospitalization.

How do we prepare to create a Domestic Partners Revocable Living Trust?

Your best path is to consult with an Estate Planning Attorney who can counsel you on the unique legal and personal needs each of you have as partners, thus to avoid disinheriting your partner but to concretely establish your intent. Visit AmeriEstate Legal Plan, Inc. for more information at You may contact us at 877.624.9231