Loving Without a License
By Nancy R. Larson, Attorney
Whether
married or not, couples of the opposite sex or same sex find
that planning for disability and death is a daunting task. Marriage provides numerous rights that are
not necessarily given to “life alliance partners.” Life alliance partners are partners of the
same or opposite sex in a committed relationship.
With proper planning, life alliance partners can obtain
many protections similar to a married couple.
Unmarried partner couples who fail to plan ahead are vulnerable to
unfortunate outcomes according to Peggy Hoyt and Candace Pollock, authors of
the book “Loving Without a License.”
Because unmarried
partners are not afforded the same protection as a married couple, dying
without a will or trust results in disinheriting the surviving partner. By putting a will or trust in place, the
state’s inheritance laws will not be used as the default distribution
instructions.
In other words,
without a will or trust in place, the state directs the distribution of your
assets at death to surviving relatives and not to unrelated partners.
A married couple
is afforded many rights and can modify those rights by entering into a
prenuptial agreement. Unmarried couples
are not given the same tools. Provisions
for who stays in the house and who has legal right to the contents at death are
crucial.
Reviewing
how title to property is held may be essential to providing for the surviving
partner. Property held jointly passes
automatically to the surviving owner and also avoids probate. Bank accounts and investments held as payable
on death (or transfer on death) automatically transfer at death to the
designated survivor.
Planning for disability is critical for life alliance
partners as well. Under HIPAA (the
Health Information Portability and Accountability Act) that became effective in
June 2003, you must appoint a personal representative in order to authorize the
exchange of medical information if you are not able or available to do so for
yourself. With a separate HIPAA
directive, or a Health Care Power of Attorney, containing HIPAA provisions,
this problem can be resolved.
During a medical crisis, a life alliance partner may be
denied visitation and will not be able to attain medical information. Without a Health Care Power of Attorney, the
Illinois Health Care Surrogate Act authorizes next-of-kin to act on behalf of
medical matters. If life alliance
partners do not want parents, siblings, or adult children to make health care
decisions, it is necessary to execute a specific HIPAA statement.
Life
alliance partners are often at a disadvantage financially when it comes to
pensions, health care benefits, and social security. Having a Durable Power of Attorney for
Property, however, will at least allow the partner to have access to banking
and investment accounts. Financial Power
of Attorney also allows nomination of a partner rather than next-of-kin as
guardian should you ever need one.
Planning for funerals generally falls to next-of-kin in
the absence of other arrangements. It is
highly advisable to at least partially pre-pay for burial/funeral expenses with
a funeral home accompanied with a written agreement in which you have selected
the goods and services you have paid for.
In
Life alliance partners require special legal and
financial planning, and should seek qualified advice from a trusted financial
advisor and attorney.
Nancy R. Larson is an attorney with
offices in