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Whether of same-sex or opposite-sex unions, unmarried couples face many estate planning issues (and opportunities). Although unmarried couples clearly face challenges that married couples do not, most are challenges that can be overcome with planning. However, because many of the issues discussed in this article are state-specific, it is important that unmarried couples preparing an estate plan seek the counsel of an attorney familiar with the laws of their states of domicile.

Unmarried couples (whether same-sex or opposite sex) have the same estate planning objectives as do married couples. They want to: avoid the costs, delays and publicity associated with probate; eliminate or minimize estate taxes; make certain their assets will pass to whom they want, when they want, and how they want; and protect heir assets from their heirs’ inabilities, disabilities, creditors and predators.

Unlike married couples, unmarried couples do not benefit from many of the legal presumptions and default provisions under state and federal law. For example, unmarried couples: are not entitled to the federal unlimited estate and gift tax marital deductions; cannot utilize the tax free “rollover” of retirement benefits in the same manner as a surviving spouse; are not covered under most state intestacy laws that determine who receives a decedent’s property if there is no Will; and are not permitted, by most state laws, to elect against a partner’s Will and thereby receive a portion of the deceased partner’s property.

Same-sex couples have made some strides under the law toward qualifying for the same benefits that married couples enjoy. In Massachusetts, Connecticut, Iowa, Vermont, Maine and New Hampshire, marriages for same-sex couples are legal and currently performed. In New York and Rhode Island, same-sex marriages from other states or foreign countries are recognized, but they are not performed. The states of California, Hawaii, Nevada, New Jersey, Oregon and Washington, by way of laws regarding domestic partnerships and civil unions grant persons in same-sex unions a similar legal status to married couples. Still, 36 states have statutes on the books prohibiting same-sex marriage, including some that also have constitutional bans. Only 3 states – New York, Rhode Island and New Mexico – have taken no action in either direction.

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