Estate, Incapacity & Long Term Care Planning
For Domestic
Partners
In 2000, the U.S. Census Bureau estimated, 9.7 million Americans were cohabiting with an unmarried partner of the opposite sex, while 1.2 million lived with a same-sex partner.
Many same sex partner households and unmarried heterosexual
couples do not have children who traditionally are the providers
of long term care. Did you ever ask yourself, "Who is going to take care of me?" or "Will
my partner be allowed to make decisions for me when I am
incapacitated?"
We understand it is human nature to avoid issues of illness, death and mortality. Yet, procrastination can result in fewer or less desirable options for resolving those issues. We educate and empower our clients to make informed decisions and create the future they deserve. Failing
to plan can have disastrous results. For example, Florida
law provides that assets of a person dying without a Last
Will & Testament are distributed to family and not to a domestic partner. If a domestic partner becomes incapacitated and does not have a Durable Power of Attorney or Designation of Health Care Surrogate their partner has no legal rights to make financial or medical decisions for them. If you helped your parents, grandparents or loved ones contend with estate planning and long term care issues, then you know advance planning is important.
Q. As a domestic partner, do I receive the same rights under the law as married individuals?
A. By law, domestic partners are not eligible to receive survivor social security benefits or veteran survivor benefits when the partner dies. Because the law does not recognize or respect these committed relationships by providing the same privileges afforded to married couples, advance planning which includes proper legal documents is very important to ensure that your preferences and decisions are enforced. Registering as a domestic partner with a city, county or state registry by itself is not enough. Q. What happens if my partner or I do not have a Will?
A. If a domestic partner dies without a Last Will & Testament, the surviving partner will not automatically inherit the deceased partner's assets. Traditionally the rule is that whoever's name is on the asset owns the asset. Even though your partner's wishes are for you to inherit, dying without a Will means that assets will be distributed to the partner's family pursuant to state law. As the surviving partner you will not be legally protected if you rely on the relatives honoring your partner's wishes. Be prepared for the unexpected by creating a well thought out plan. Q. What types of competent legal advice should my partner and I seek to plan for our future?
A. Three major issues arise in a person's life that requires planning: A. Obtaining the best possible health insurance coverage (including prescription coverage), B. Selecting a trusted person to make medical and financial decisions in the event of a person's incapacity, and C. Properly planning one's estate. Q. What unique issues do we face as domestic partners?
A. Real Estate: If partners have shared in the purchase and maintenance of the home but the deed does not reflect joint ownership, the surviving partner's rights to the home may be compromised. Legal options exist that provide the surviving partner with either an ownership interest or, a legally enforceable right to live in the home, after the owner dies. If both domestic partners have an ownership interest in real estate as joint tenants with rights of survivorship and both people filed for homestead, you can limit the increase in future tax bills. However, it is up to you to implement these options.
Health Insurance: When planning for the future cost of health care several options are worth exploring. First, each partner should ask their employer whether the company provides health insurance benefits for your partner. The employer may require you to complete either an Affidavit of Relationship Status or, Domestic Partner Affidavit. By having primary coverage through your employer and secondary coverage through your partner's plan individuals can be dually eligible for better or, more comprehensive healthcare coverage.
Keeping your own insurance is important in the event that your partner's employment is terminated or, your partner's employer goes out of business. If your partner's employment is terminated, only the employee, the employee's spouse and dependent child are eligible for continued health insurance coverage for a specified period of time under COBRA. Due to the Defense of Marriage Act of 1996, a domestic partner will not qualify as the employee's spouse. This law provides that a spouse only includes a person of the opposite sex who is a husband or wife of the covered employee.
Secondly, if long term care insurance is available through employment, consider taking it because you will be part of a group underwriting requirement. This means you will not be denied coverage if you have had or have an illness. Long term care insurance benefits can provide more options and choices for long term medical care than is provided under the Medicaid program. Some insurance companies are writing private policies for domestic partners. We suggest you check with your insurance agent or contact us regarding this option.
Partnership Agreement: Lastly, it is important to consider creating a written agreement that addresses disposition of assets in the event the couple decides to end their relationship, as well as the rights and responsibilities of each partner. It is helpful when this is done simultaneously with estate planning.
Q. What Legal Documents Should We Have?
A. We recommend the documents that will address your estate planning needs (Will; Trust) as well as incapacity needs to avoid guardianship (Durable Power of Attorney; Designation of Health Care Surrogate; Living Will). If you are concerned that your family may contest your partner being named in your Durable Power of Attorney or Designation of Health Care Surrogate, consider designating your partner as your guardian if you become incapacitated. The plan you create should be tailored to meet your particular needs and goals.
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