Legal Protections for Same-Sex Couples Who Choose Not to Marry or Enter Civil Union

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

Property Settlement Agreements for Unmarried Same-Sex Couples

There are a variety of reasons why committed same-sex couples choose not to enter into marriage or civil union.  Aside from living in a state that does not recognize same-sex marriage or civil union, there are other issues that couples must consider.  Among these are the desire to adopt a non-biological child, eligibility for state and federal entitlements, military affiliation and the like.  Quite honestly, marriage is not for everyone and not every couple should walk down the proverbial aisle.

Before gay marriage became a legal reality in Connecticut and other states, same-sex couples lived together in committed relationships that involved joint ownership of real estate, automobiles, recreational vehicles and other such assets.  Those same couples often shared joint bank accounts and other investment vehicles.

In the days since gay marriage arrived, those couples who have chosen not to avail themselves of the right to marry are still living in committed relationships and they still share joint ownership of those same assets.

The unhappy reality of relationships is that not all of them succeed.  Just as married couples often find themselves seeking divorces, unmarried couples may also find themselves dissolving their relationships.  In a divorce situation, the joint assets are divided as part of the divorce decree.  Couples may agree upon the division or a judge may make that determination if no agreement can be reached.

For unmarried couples seeking to dissolve their relationships, those same assets must still be divided.  Unfortunately, when relationships end and emotions rise to new heights, agreements are not always easy to reach.  For that reason, if you and your partner choose not to marry, you should consider having a Property Settlement Agreement drafted.  Such a document is much like a prenuptial or postnuptial agreement.  It creates a contractual obligation that determines which party will receive which assets upon the dissolution of the relationship.

Let’s say that you and your partner jointly purchased a home which you lived in together for 10 years.  You funded the $30,000 down payment on the home with money you inherited from your parents when they died.  Over the last 10 years, your partner has contributed an equal amount of money toward your shared living expenses, including utilities, mortgage  and property insurance.  If you separate, you both understand that you are each entitled to a 50% share of that home.  You also agree that if the house is sold, you should be reimbursed the first $30,000 that you initially provided for the down payment.  That particular provision should be memorialized in your Property Settlement Agreement.

In an alternative hypothetical, let’s assume that you put down the same $30,000 deposit on the home and over the last 10 years, you paid 80% of the mortgage payments while your partner was only able to contribute 20% of the mortgage and 20% of the shared living expenses.  Your agreement might state that if the relationship ends, you have first right of refusal to purchase your partner’s interest in that home for 20% of fair market value minus the $30,000 deposit you initially paid.  Alternatively, your agreement might state that if the property is sold outright, you are entitled to the first $30,000 of the proceeds plus 80% of the remaining proceeds of the sale.

Your agreement might determine which of you will assume custody and control of your pets if the relationship terminates.  It might also delineate which pieces of art or collectibles will belong to whom upon your separation.  The agreement might outline the division of monies in your joint bank accounts.  It might state that if you separate, gifts given to both of you by your family become your sole property.  There are a host of other items and issues that may be addressed in such agreements.

Some couples believe that they will never require such agreements because they either will not split up or if they do, they will be rational when dividing their joint assets. Some couples do stay together until death do they part and some couples who split up are able to be rational when dividing their assets.  I am here to tell you, however, that happy endings — or happy breakups — are not always possible.

It’s far less expensive to execute a Property Settlement Agreement as a “just in case” proactive action rather than be forced to litigate such issues in court.  There are plenty of horror stories about the latter.  In any case, you should discuss your personal situation with your attorney.  It pays to be informed.

For a brief overview of Property Settlement Agreements, download my complimentary brochure here.

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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