Wills, generally considered relatively simple tools for distributing an estate, can also define relationships, present evidence of intent, direct guardianship, and much more. Wills for same-sex spouses need not be dramatically unique, but they can provide special protections and should be a priority for any same-sex couple young or old.
Here are some reasons why Wills are especially important for same-sex couples and key elements you should include:
Because you may not die in Massachusetts. As somber as it may be, most states remain hostile to the idea of recognizing a same-sex spouse in life or death. Intestacy statutes (the laws that govern distribution of assets when there is not a Will) in states that do not recognize marriage equality will treat a same-sex spouse as a mere stranger, bypassing that person in favor of a blood relative. By executing a Will, you can ensure that no matter where you die, your spouse will receive all to which he/she is entitled.
Defining the relationship. An explicit clause defining your relationship in your Will provides extremely strong evidence of your intent to be considered a married couple, regardless of the laws of the state in which you die. Any challenge by a hostile family member, for example, would have a hard time overcoming such explicit documentation.
Providing for the guardianship of children. Whether or not you currently have children, a Will can provide that in the event of your death, your surviving spouse will be named as guardian of your children. A guardianship clause is particularly helpful if you move to a state hostile to marriage/adoption by same-sex couples.
Because laws do change. While it does not appear that any viable challenges to marriage equality in Massachusetts loom on the horizon, the entire country remains a battlefield for same-sex couples. State and Federal laws may change for the better or worse. Having a duly executed Will with explicit language about your relationship to each other and your children, can provide protection in an uncertain future.
Because now you’re married (or engaged). Remember also, that if you executed a Will prior to your marriage, whether it named your current spouse as a beneficiary or not, it is now invalid unless explicitly made “in contemplation” of your marriage.
Claire Bartholome is an Attorney with the Law Office of William J. Brisk. Her practice specializes in estate planning for same-sex couples in order to combat discrimination, legal challenges, and prejudice. This information is not intended to provide legal advice. For information as to how the laws apply to your specific situation, consult an attorney. www.briskelderlaw.com
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