Why Gay and Lesbian Couples Need Estate Planning

Washington's original domestic partnership law was enacted in 2007, and was substantially updated both in 2008 and 2009. In order to register as a domestic partnership, the two individuals must:

1. Share a common residence

2. Be at least 18 years old

3. Not be married to or in a state registered domestic partnership relationship with someone else

4. Be capable of consenting to the partnership

5. Not be nearer of kin than second cousins to the other person

6. Be members of the same sex or, if not, one person must be at least 62 years old

Pursuant to the 2008 changes, registered domestic partners essentially have all of the rights and responsibilities under Washington state law as husbands and wives. For example, if you don't have a Will, a domestic partner can obtain assets pursuant to the laws of intestacy. Also, the 2008 law allows domestic partners to acquire community property.

In 2009, the Washington legislature further expanded the equivalency between a registered domestic partnership and a marriage pursuant to state law. For example, the Washington estate tax marital deduction has now been extended to registered domestic partners. Also, in 2009 the termination process for a registered domestic partnership was modified by eliminating the prior nonjudicial termination procedure, and instead requiring a dissolution petition just like the dissolution of a marriage.

Although these legislative changes are certainly steps in the right direction, still, gays and lesbians cannot marry in Washington. Stacey fully supports the Washington State Bar Association's position, adopted on September 19, 2008, in support of gay marriage. However, in the meantime, the rights of gays and lesbians in committed relationships, even if they register with the state, are not the same as the rights of a heterosexual married couple. All of the rights granted by Washington are only applicable in terms of state law, not federal law. Therefore, registering a domestic partnership has no impact for federal estate or gift tax purposes, nor are registered domestic partners considered married for federal income tax purposes.

It is critically important for gays and lesbians to execute estate planning documents, rather than simply relying on Washington's domestic partnership laws to protect their interests. Heterosexual married couples still need to do estate planning - and so do you!

Our office represents gay and lesbian couples in providing comprehensive estate planning services. Our work is designed to reduce the stress and expense of a probate proceeding, and to make sure the intentions of the couple are fully realized. 

Estate Planning:
For most of my clients, their goal in completing the estate planning process is to create clarity in this murky area. Clarity brings peace of mind, and certainty, to clients and their partners. Estate planning is an essential part of your overall financial planning. I recommend that my clients in gay, lesbian and heterosexual domestic partnerships have Wills, clarifying their relationship with their partners, and setting forth what assets their partners should receive upon their deaths.

General Durable Power of Attorney:
Similarly, most of my clients in these relationships want their partner to handle their financial affairs in the event an unfortunate event occurs, which causes them to be incapacitated for a period of time. Since you are not “legally married” in the State of Washington, you should have a General Durable Power of Attorney. This document can specify that you want your partner to have full authority to handle all of your financial matters in the event of your incapacity.

Durable Power of Attorney for Health Care Decisions
A Durable Power of Attorney for Health Care Decisions is particularly important for gay, lesbian heterosexual domestic partners. This document can allow your partner to make medical decisions for you if you are incapacitated and unable to make your own medical choices. It also clarifies, in the absence of a “legal marriage,” that your partner has full visitation rights in the event you become ill and are hospitalized.

In many ways, estate planning for gay, lesbian and heterosexual domestic partners is more important than it is for legally married couples. I strongly recommend that partners discuss these issues in detail, and then undergo the estate planning process to create clear and enforceable rights for their loved ones in the event of an illness, accident, or death.

Washington Domestic Partnership Registration Form and additional information: http://www.secstate.wa.gov/corps/domesticpartnerships/ 

Any questions? Please contact Stacey's office at inquiry@staceyromberg.com