The laws on same sex marriage have been changing rapidly in the past several years, particularly in light of the U.S. Supreme Court's rulings in United States v. Windsor and Obergefell v. Hodges. As a result, one should not rely on the laws of intestate succession to provide an inheritance or financial support for a same-sex partner.
Regardless of whether you are married or are part of a domestic partnership or civil union, the benefits of making a will or living trust cannot be overstated. By executing a will and other estate planning documents, such as a living trust, you can ensure your spouse or partner will receive the inheritance you intend.One of the most important reasons to execute a will or living trust is to ensure your spouse or partner is not thrown out of your home. If you want your spouse or partner to receive specific items of personal property or to receive financial support from your estate, you can include these types of provisions in your estate plan documents. You can also use a will to name your spouse or partner as executor of your estate.Intestate succession laws date back hundreds of years and were originally designed to protect surviving spouses and children. They were not drafted with the interests of same sex-couples in mind. By making a will or living trust, you can have a testamentary instrument tailored to your specific objectives and maintain control over your property. For more information on same sex marriage and your estate plan, see our same sex marriage resource page.
Civil Unions and a Partner's Share
If you are a party to a civil union, familiarize yourself with the laws in your state regarding probate, intestate succession, and civil unions to better understand your rights regarding inheritance and any property you share with your partner.
Domestic Partnerships and Intestate Succession
In states that have domestic partner registries, a domestic partnership confers many important rights and benefits on both partners. But those rights and benefits are not always equal to those of married couples. One of the most important rights the law confers on married couples is the right to inherit real estate, personal property, and other assets from a deceased spouseís estate. In some states, registered domestic partners are entitled to inherit from a deceased partnerís estate under the laws of intestate succession in the same manner as a surviving spouse would receive a spousal share. However, in some states, domestic partners may be excluded from intestate inheritance rights or may not receive certain protections available to a surviving spouse, such as a homestead or family allowance to protect estate assets from creditor claims. State laws regarding domestic partnership have been changing in recent years.
To determine whether your domestic partner has the right to receive a share of your estate and what other protections are available to domestic partners under state intestacy laws, consult an estate planning lawyer licensed in your state. It is essential for domestic partners to execute wills, trusts, and other estate planning documents to protect each other.
If You Own Property In More Than One State
Making a will is also very important if you own real property in more than one state. If you own real property in another state and die without a will, the real estate will pass according to the intestate succession laws of the state where the real estate is located. Unless you own the real estate as joint tenants, tenancy by the entirety or another form of ownership that allows your share in the real estate to transfer to your surviving partner by operation of law, your partner may have no right to inherit your interest in such real estate, especially if the laws of that state do not recognize your domestic partnership or civil union.
How to Hold Title to Property With Partner
If property is held in certain forms of title, the property will not pass through probate upon the death of an owner and therefore, such property does not pass according to the laws of intestate succession if you die without a will. An important part of making an estate plan is using the correct method of holding title to property to ensure your assets are distributed to the parties you want to inherit them.For information on the different ways you can hold title to property with your partner, see Title to Property.Return to our Free Estate Planning Guide for Spouses and Partners.