Estate Planning for Same-Sex and Unmarried Heterosexual Couples

As the debate over same-sex marriage continues to gain momentum, one thing remains certain: unmarried couples do not have access to the same end-of-life benefits and protections that married couples realize.  For this reason, couples who are not married, whether same-sex or heterosexual, must take extra steps to protect their loved ones in the event of illness or death.

Benefits Only Available to Married Couples Include:

Estate Tax Benefits: Married couples can inherit unlimited assets from their spouse without paying any estate tax at their spouse’s death.  This is often referred to as “the marital deduction.”  Unmarried couples do not have this same right and may be surprised to find out that they may even have to pay taxes on property they already own jointly with their partner.

Inheritance Laws: Unmarried couples are not recognized under North Carolina’s intestate succession laws.  This means that if a partner dies without a will, his or her property will go to the next of kin.  Unfortunately, I’ve seen more than one case of a partner being forced out of the home they lived in for many years by the deceased’s family because the surviving partner’s name was not on the deed and the deceased did not leave a will.  This tragic event can easily be avoided with proper estate planning.

Long-term Care: Nursing home care can be incredibly expensive and couples may be forced to seek government benefits to help pay the nursing home bills.  In order to be eligible for government benefits, assets must first be spent down to a certain amount.  Married couples are allowed to keep some assets to support the spouse who remains at home.  This benefit is not available to unmarried couples and can be devastating to an older couple if the partner who remains at home depended on the income or assets of the partner entering the nursing home.  Many couples believe they have no choice but to sell their home so one partner can qualify for benefits.  This is not always the case and may be avoided through proper planning with an experienced elder law attorney.

Social Security Benefits: When a spouse dies, the surviving spouse can elect to continue to receive his or her own benefits or his or her spouse’s benefits, whichever amount is higher. Unfortunately, unmarried couples are not eligible for survivor’s benefits.  One way to offset this loss of benefits is through the purchase of life insurance.

Unmarried couples should have a valid will or living trust, durable power of attorney and health care power of attorney to ensure that their wishes are carried out, both with regard to their property and to their healthcare.

Dori Wiggen is an attorney at Wiggen Law Group PLLC, where she focuses her practice in Estate Planning, Probate and Elder Law.  Ms. Wiggen can be reached at (919) 680-0000 or dori@wlgnc.com.

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