Thomas H. Sullivan
Attorney at Law
Non-Traditional FamiliesNon-traditional families require special estate planning attention. Most state laws regarding intestate succession, rights to non-married guardian or conservator, and rights to make health care decisions are based on a traditional model of a husband and wife, who are married only once and have children from that marriage. Most state laws do not adequately deal with families who do not fit neatly within this traditional model. Some of these special estate planning needs are described below.
Blended Family—A blended family is one where at least one of the spouses or partners has children from a previous relationship. If that person wants to provide for their spouse or partner, and also provide for their children, it requires special attention and care to make sure that both are adequately protected. If the parents in this blended family title their assets in joint-tenancy with right of survivorship, or have a traditional “sweetheart will” which leaves everything to the survivor, then the children of the person who dies first will generally be cut out entirely. On the other hand, without adequate planning, the surviving spouse may find that his/her step-children are suddenly co-owners of the home and other assets, which may cause significant problems for the surviving spouse. There are many solutions to this dilemma, and no one solution is right for everyone. At Sullivan Estate Law, LLC, we frequently deal with blended families and we will examine each unique situation, listen to your goals and concerns and find ways to reach your goals while providing for all of those persons that you love.
Unmarried Couples—Couples in a committed relationship, whether straight or gay, have unique planning needs. Since the law does not recognize your relationship, your partner has no right of inheritance, nor right to deal with your financial affairs in the event of your disability, nor any right to participate in health care decisions in case of your disability, and no right to have access to medical information. In the event of your disability, your partner may be totally shut out of all involvement in favor of the biological family. Some unmarried couples believe that because they share a checkbook, that they do not need to be concerned about these issues. On the contrary, unmarried couples must be proactive to create plans and documents which protect their partners and themselves. Without proper planning, your wishes may not be carried out. Your partner may be at the mercy of your biological family, and your partner may not even be able to visit you in a health care facility, much less make any decisions on your behalf. You should not rely on “common law” marriage, which may or may not apply in your situation. We can help you design a plan that meets your goals, protects you and protects your partner.
Unmarried couples who are co-owners of real property (and in some cases, personal property) should have a property agreement setting forth each party’s rights with respect to that property. In some respects, this agreement might be similar to a pre-nuptial agreement, and in other respects might be similar to a business buy-sell agreement. Such agreements can be tailored to your individual situation to avoid litigation and hassles, in the event of the dissolution of your relationship.
Planning for LGBT Individuals—Gay and lesbian couples, whether married or not, require additional planning. If you live in Kansas or Missouri, or the majority of states that do not recognize same-sex marriages, you will be in the same situation as any other unmarried couple. The Federal law may give you certain rights, but if you were legally married but live in a state that does not recognize that marriage, matters relating to rights of inheritance, rights to nominate a guardian and conservator, rights to make financial or health care decisions and a vast array of other rights are controlled by state law. You would need to be proactive to create the rights which the state law does not afford to you and your partner. Although you may believe that your biological family will honor your wishes, you should never rely on those good graces. You should, instead, do your planning and create the documentation to guarantee that your wishes are carried out. Like other unmarried couples, LGBT couples, living in states that do not recognize the marriage, should have a property agreement that protects ownership of their property in the event of the dissolution of their relationship.
If you were lawfully married, but live in a state that that does not recognize the marriage, dissolution of your relationship may be difficult The state of your residence may not grant you a divorce, because it does not recognize your marriage, and on the other hand, you may not be able to get a divorce in the state where you were married, because you are not a resident of that state.
At Sullivan Estate Law, LLC, we are sensitive to the needs of LGBT individuals and couples, and can help you create plans to carry out your wishes, meet your goals, protect yourself and protect your partner.