Gay couples that live in states that do not recognize same sex marriages have unique concerns when it comes to estate issues and real estate. Below are some legal avenues that you can use to protect your gay partner and ensure your assets are distributed according to your wishes.
Wills
Wills are important estate planning documents that allow you to distribute your assets according to your wishes upon your death. If you do not create a will, your estate will be distributed according to the intestate laws of the state that you live in. This presents challenges for gay couples that are not married or in a legal partnership or who live in a state where same sex marriages and partnerships are not recognized. In those states, your gay partner cannot inherit your real estate unless they are listed on the deed as joint tenancy with right of survivorship, named in your will, or other estate planning measures have been taken.
With a will, you can name your partner or another person as an executor to manage your estate after you die, record how you want your assets distributed, and nominate a guardian for your children and to handle any assets that they may inherit from you. You can leave all or a portion of your estate, including your real property, to your gay partner through a will.
Revocable Living Trusts
Revocable living trusts are similar to wills but title to your assets is transferred into a trust while you are living. A living trust allows you to avoid probate, a drawn out process where the court oversees distribution of your estate. The trust is revocable, meaning that you can revoke it entirely or change the terms while you are alive and are mentally competent. It is legal for you to appoint yourself as the trustee of the trust during your lifetime so that you retain control over the power to sell, invest or do whatever you want with your assets.
A revocable living trust allows you to direct who will inherit your property and to name a successor trustee to fulfill the directives of the trust. Your gay partner could be named as the successor trustee and it would be his obligation to distribute your property as you directed. You can leave all or a portion of your real estate, bank accounts, jewelry and other assets to your partner.
Transfer on Death Deeds
Some states allow a transfer on death, TOD, real estate deed to be filed with the county registry of deeds. The TOD should state specifically that it only takes affect upon your death. You can name your gay partner or anyone else as the beneficiary on the TOD. It can be revoked at any time while you are alive. You should check the laws in your state to determine whether TOD’s are allowed if you are interested in this type of estate planning.
Each state has its own estate planning and real estate laws. It would be wise to consult with a professional gay realtor at GayRealEstate.com for a referral to a real estate attorney who is familiar with LGBT issues when considering the options available to you and your gay partner.
