Same-sex marriage is not yet available in every state or country. Some lesbian and gay couples have chosen to marry or enter into civil union in a state that does allow the union even though their own state of residence does not. Other couples — many of whom have been together for decades — opt not to ‘tie the knot’ even when it is available to them. Marriage (or civil union) is a personal choice that is not for everyone. It is the latter group of same-sex couples that I am addressing in this space tonight.
As a lawyer, I handle all sorts of matters for lesbian and gay couples. I find that such matters (or questions about specific issues) seem to run in cycles. Recently, I’ve taken a lot of calls from lesbian and gay folks who are not married (or have not entered into civil union). They have unique problems to which they seek answers.
The most common problem is when one partner in a committed relationship dies — remember, the couple is unmarried — and the surviving partner wants to know his or her rights to the deceased’s real and personal property. I’ll start by saying that absent a Last Will and Testament that clearly gives the survivor specific property and/or money, or absent a deed to real property on which both partners were named joint tenants with rights of survivorship, it’s not looking good.
Let’s say that you are in a committed long-term relationship and the home you live in is solely owned by your partner. In other words, you have no legal title to the house. Although you have contributed to the mortgage all these years and split the cost of utilities, repairs, maintenance and taxes, you don’t have any legal rights to the house if he/she dies.
If you happen to be the sole owner of the house in which you reside with your partner, you have a couple of options if it is your intention to allow him/her to reside there after your death. First, you can leave the house to your partner outright in your Last Will and Testament. Another option is to leave your partner a ‘life use’ in the home, meaning that he/she is allowed to reside there until his/her death (or perhaps confinement to a nursing home, marriage, or something similar). You can choose the specific terms of the ‘life use’ clause. When your partner later dies (or terminates residence at the home), the title to the property will pass to the beneficiary of your choosing, such as your children or family members. This is done through your Will. If you do not leave a Will that creates some type of legal rights to the home, your partner is out of luck.
The same is true of bank accounts, investments, automobiles, art collections, antiques — anything owned solely by one person in the relationship. Absent your name on any of those things, you don’t own them. Without a Will, those items will pass to your partner’s biological family according to the laws of intestacy. Again, you’re out of luck. If your partner does leave a Will, he/she can specify which items of personal property, bank accounts and automobiles should be given to you upon his/her death.
There are some financial instruments and retirement plans on which each partner can designate the other as beneficiary upon death. If you are not listed as the beneficiary and there is no Will instructing those financial instruments to go to you, well, you’re out of luck. The same is true of life insurance policies. It’s always best to contact the companies handling your investments for specific instructions on how to add your partner as a beneficiary. If you choose not to do that, you may be able to leave those financial instruments to your partner via your Will.
In some cases, unmarried couples ask me to prepare a Quit Claim Deed that grants one partner rights to the title of the house now solely owned by the other partner. If one partner dies, the full title to the house is then owned by the survivor. There is one caveat to that method: once you Quit Claim the house to your partner, he/she becomes a co-owner right then and there, not just after you die. If you split up, your partner still owns half of your house. If that is not your intention, you should consider having an attorney draft a Property Settlement Agreement. Such an agreement is much like a Prenuptial Agreement in that it clearly instructs what occurs with respect to your house and other property in the event of a break-up (as opposed to a divorce) and does not leave anything to chance. For example, the agreement might instruct that upon your break up, full title to the house reverts back to you as the original owner and that your partner will be required to execute a Quit Claim Deed to make that effective. You could designate a specific buy-out amount. There are a variety of terms that could be included. Such an Agreement is a legal contract that is enforceable in a court of law. You will both be bound by its terms. I advise people to consider such an agreement prior to executing any Quit Claim Deeds. As warm and fuzzy as it is to want to protect your partner in the event of your death, break-ups are also part of life. Let’s just say that you might not be feeling so warm and fuzzy when you have to buy out your partner’s interest in your house at one-half of the fair market value after you caught him/her cheating on you. It happens, I’m afraid.
My free advice for tonight is: Be prepared. Do your homework. Decide what’s best for you as a couple. Then do it. Don’t wait until it’s too late.
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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.
copyright 2011 Irene C. Olszewski