As an attorney, I’ve represented hundreds of couples and single people, and I’ve learned that many of them have mistaken ideas about just what estate planning is and how it works—especially now that marriage is an option. Sometimes those notions keep them from taking rational and not-so-difficult steps to protect their families and assets.
In a series of columns, I am going to look at the myths of estate planning and demystify them. I hope the insights will help you feel smarter on the subject and more comfortable with the idea of creating an estate plan. If you do, you’ll feel a lot better—and that’s the truth.
1. I don’t have an “estate,” so there’s nothing to plan. Sure, “estate” sounds like we’re talking about landed gentry, but we’re not. Estate planning is shorthand for dealing with the three Big Bad D’s: death, disability and divorce. One of them is for sure, and the other two are pretty common.
2. We have to get married to protect ourselves. Marriage does make estate planning easier in some ways. But, now as before, marriage isn’t right for everybody — or even required in order to be protected under the law. When marriage wasn’t an option, we created estate-planning tactics that still work for unmarried couples, although the implications in D.C., Virginia and Maryland are much different.
3. Now that we’re married we don’t need wills and powers of attorney. Not true. Even if you are married, if you die without a will, the law may distribute your estate in ways that can be a disaster. And marriage does not automatically confer complete decision-making powers on either spouse. Powers of attorney are essential to give you the clear right to care for each other if either or both of you become incapacitated.
4. I’m obligated to leave money to my relatives. No, you’re not. Many people feel that it is their duty to pass assets on to the next generation or to siblings. You certainly can, but it is rarely a requirement unless you have minor children. In fact, you have many meaningful options that go beyond enriching nieces or nephews who stand to inherit significant assets from their parents.
5. We have wills, and so our in-laws can’t make trouble. If only it were true. Relatives can contest the terms of any will. That may even be likelier in the case of same-sex couples because some family members may question the basic legitimacy of your relationship. You can’t stop a vehement relative from challenging a will, but you can take steps to bulletproof your plan.
6. A pre-nup is only for rich and famous people (and it proves that I don’t think our relationship will work). You don’t have to be a Kardashian to need a pre-nup. One of the distinctions of same-sex relationships is that many of us come to them after years of successful earning and accumulation of assets. Disparity in wealth, professional status, citizenship and age can all create avoidable issues that pre-nups (or partnership agreements in the case of unmarried couples) can anticipate.
7. Any attorney can handle estate planning for same-sex couples. Someday, maybe. But you still need to be very thoughtful about selecting an attorney for this job. Same-sex couples have a range of issues that may not be so familiar to some attorneys. We often have complicated past relationships and difficult family dynamics that a typical attorney may not understand.
Larry Jacobs has helped hundreds of same-sex couples and LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 41 years. He is admitted to the bar in Maryland, Virginia and the District of Columbia. You can learn more about his practice at PartnerPlanning.com. This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.