California Family Lawyer Highlights the Importance of Estate Planning for Gay Couples

Every couple has concerns about what would happen should their significant other pass away. What would happen with their savings, property and wishes for their family and friends? Domestic partners and legally wed gay couples should talk with a family law attorney with regards to estate planning. With the changing legal landscape, it helps to have a lawyer to ensure that your partner will not have to deal with an emotional and financial burden.

Estate planning for gay and lesbian couples, whether legally wed or as domestic partners, will involve documents and contracts that detail who gets what property and assets as well as custody of children, health care directives and power of attorney. Without the appropriate documents and contracts, gay couples could jeopardize their assets and intentions for friends and family. The law (especially if one partner is from a state outside of California) and family members can be harsh and not recognize domestic partnerships.

“Your assets could be tied up in time-consuming and expensive probate processes, and family members could inherit portions of your property if there is no estate plan in place,” said Los Angeles family lawyer Anthony Spotora, managing attorney of Spotora & Associates, P.C.

How a lawyer drafts the estate documents will largely depend on whether you are legally wed or registered as domestic partners with the state of California. An estimated 20,000 gay and lesbian couples were legally wed in California between June 16, 2008 and Nov. 4, 2008 before Proposition 8 changed California’s constitution to prohibit same-sex couples from marrying. Currently, the California Supreme Court is discussing Proposition 8’s legality. Still, those couples that were legally wed can presently enjoy all of the benefits otherwise only traditionally bestowed on heterosexual spouses when preparing their estate plan. For those gay couples that were not legally wed, California does recognize domestic partnerships and by filing with the California Secretary of State’s California Domestic Partners Registry, partners will have numerous legal rights and responsibilities in the eyes of the law.

California law differs from federal law, however, so it is important to know that there are 1,138 U.S. rights and protections that are only given to federally recognized spouses. Social Security survivor benefits, for example, do not transfer to domestic partners. And the federal government could heavily tax property transfers between partners, as U.S. law could consider these transfers subject to gift tax laws.

“Unfortunately, this means that domestic partners do not have adequate protection should something happen to their significant other,” Spotora said. “The way to safeguard your partner and assets is to have an estate plan in place that goes over each facet of your life.”

The following documents are vital to an estate plan:


A will is in place to distribute property, name guardians for children, and describe last wishes. You can leave your property to anyone you choose, in whatever proportions you choose, including leaving everything to your partner if you wish. Funeral wishes and arrangements are also important details. Wills are a pivotal part of an estate plan, but they can be subject to probate court that can cost thousands in court fees and years to resolve should there be family disputes. Wills are also public information.


This document will name the person(s) who will receive your assets and appoint a trustee to distribute the assets after death. Choose a trustee carefully and go over the specific directives you want to happen after death with an attorney. A trust allows beneficiaries to have access to assets quickly, including insurance policies, so that financial struggles do not ensue. Trusts are less open to challenges in comparison to wills, and must remain private so no one except for the beneficiaries will have the right to know how assets were allocated. A trust will also allow a partner to avoid the expensive and time-consuming process of probate.

Power of Attorney and Advance Health Care Directive

Should you become incapacitated, a durable power of attorney document will appoint a go-to person to act as your agent to make critical decisions. The DPA is only activated with a doctor’s note should a partner be legally incapacitated. This document will spell out whom you authorize to pay the mortgage and bills, deposit money into bank accounts, lead the family business, and can now even designate visitation rights. Without a DPA, your significant other would have to petition the court to be your agent, which is a stressful, expensive endeavor – especially if family members disagree. And an advance health care directive will specify who can make critical healthcare decisions on your behalf, what type of treatment you want or disapprove of at the end-of-life stages, as well as surgical procedures, diagnostic testing, resuscitation and organ donation wishes.

Custody Documents

Partners that have children should have documents in place to name a guardian, set up a trust for the kids, and describe time-sharing agreements. Otherwise, children could end up in a heated family dispute or transferred to out-of-state custody.

Keep Good Records and Update Documents

Be sure that titles to property show joint tenants with right of survivorship or keep good records in case the IRS questions the property and wants to levy taxes after the partner’s death. Check to see if your 401k and other asset accounts allow a domestic partner to be a beneficiary. Update and confirm beneficiaries once a year and keep up with changing state and federal tax rules.

“Our law office will help you go over the options you have depending on your family situation, size of your estate, and what your wishes are,” Spotora said. “You deserve to be treated with dignity and respect, and a proper estate plan will help your legacy live on.”

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This entry was posted on Tuesday, March 1st, 2011 at 1:03 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

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