Legal Challenges Facing Unmarried and Same-Sex Couples

Unmarried and same-sex couples face unique challenges under the law--especially when it comes to matters involving estate planning

When a couple live together but are not legally married, they essentially have little or no rights when it comes to certain situations. These include the right to inherit each other's assets and the right to handle each other's estate administration. It also encompasses the right to speak with physicians and to participate in healthcare decision-making.  

A real-life example can illustrate this situtaion. Sara and Tom (but it could just as easily be Sara and Nancy, or Tom and Bob) have lived together in Florida for over ten years. By choice, they elected not to marry but they love each other and share almost everything--as such, they consider themselves as if they were married. Unfortunately, they do not have any estate documents in place.

Sara becomes gravely ill and Tom wishes to confer with her physicians and to participate in her care. Tom is told that due to HIPAA, he not only cannot participate, he is not entitled to speak with the physicians about details of Sara's condition or treatment. Also, while Sara is in the hospital, Tom needs to pay some of her bills using her checking account. Lacking any authority to use that account, he cannot help.

Ultimately, Sara dies from her illness. Since they had been a couple for so long, Tom believes that he wil be in charge of Sara's estate and that what Sara owns will go to him. However, since there's no Will, Sara's estate is overseen by her father and her assets are disposed according to Florida's intestacy laws. This means that Sara's paraents, who hadn't spoken to Sara in years due to their disapproval of her out-of-wedlock relationship with Tom, will inherit what she owns.  

So could these problems have been avoided? The answer is certainly "yes." If Sara and Tom had done some basic estate planning, they could have dealt with each dilemma posed by Sara's illness. If Sara had a Power of Attorney for Healthcare (also sometimes called a Designation of Healthcare Surrogate) which included HIPAA authorization, Tom could have spoken with Sara's physicians and could have participated in making health decisions. As far as accessing Sara's bank account, if she had had a Durable Power of Attorney (governing busness and financial matters), he could have done what was needed to help Sara. 

After Sara died, if she had a Last Will and Testament, she could have designated Tom as beneficiary and as Personal Representative (Executor). This would have kept her father out as Personal Representative and her assets could have been devised to Tom. 

Everyone needs basic estate planning. If you're an unmarried person, estate plannning is especially important as can be explained by an experienced estate attorney.

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