Book Details

Estate, Tax, and Benefits Planning for Unmarried Couples

By Joan M. Burda, Patricia A. Cain, Wendy S. Goffe, Tamara E. Kolz

  • ONLINE: 2009
  • Online
  • 144 pp.
  • $24.00

 

What six types of documents are essential in planning for the personal needs of unmarried couples?

How should the term “partner” be defined for estate planning purposes?

What are the seven essential elements of an effective cohabitation agreement?

When is a certification of a domestic partnership for insurance purposes necessary or useful?

What are the tax implications of the dissolution of a domestic partnership or cohabitation arrangement?

When should a medical power of attorney specifically grant a partner visitation rights and the power to control the visitation rights of family members?

What seven strategies should the partners’ attorneys use to minimize family conflicts?  

 

Overview

Although the vast majority of people in the United States marry, a substantial number of couples are unmarried for a variety of reasons. Unmarried couples include men and women who choose not to marry for personal, cultural, economic, or legal reasons; same-gender couples who cannot lawfully marry within the state in which they reside or whose marriage is not recognized under state or federal law; same-gender couples who have registered as domestic partners but are unable or unwilling to marry in a state that recognizes same-gender marriages.

This manual provides guidance concerning ways these couples can plan for their partners. For example, each partner may have an interest in real estate, a business, or another investment that could be transferred to a partnership, corporation, or trust established to benefit one or both partners. Thus, although the personal relationship may not be recognized as a marriage or domestic partnership under state or federal law, both the state and federal government will recognize a properly and formally established legitimate business relationship. So for insurance purposes, the text explains how and when an insurable interest in such an entity may be created and how the benefits of insurance may be maximized and applicable taxes minimized.

To further maximize benefits and minimize taxes, unmarried, same-gender, and other nontraditional couples and their families must plan and prepare business, personal, estate, health care, and other family law documents to ensure that their partners and their families are protected. 


To help lawyers representing these couples, this manual includes sample agreements and other forms including:

Agreements dealing with surrogacy, donors, and other assisted reproduction techniques;

Provisions dealing with the rights of biological and nonbiological parents;

Provisions for including children conceived posthumously or through assisted conception as beneficiaries;

An agreement confirming the nature of the relationship and confirming ownership and beneficiary designations;

A sample designation of a partner as an agent with authority regarding: health care visitation, receipt of personal property, disposition of remains, funeral arrangements; and

A model HIPAA authorization

 

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About the Author

Joan M. Burda is an attorney in Lakewood, Ohio. She has a solo practice limited to estate planning and primarily represents lesbian and gay clients. This is an update of her 2006 article. She is the Editor-in-Chief of GPSOLO, the magazine for the ABA’s General Practice, Solo and Small Firm Division. She is the author of Estate Planning for Same-Sex Couples (ABA 2004) and Gay, Lesbian and Transgender Clients: A Lawyer’s Guide (ABA 2008).

Patricia A. Cain is Inez Mabie Distinguished Professor of Law at Santa Clara University and the Aliber Family Chair in Law, Emeritus, at the University of Iowa. She is the author of Rainbow Rights: the role of lawyers and courts in the lesbian and gay civil rights movement (Westview Press 2000) and Sexuality Law (Carolina Academic Press 2005)(with Arthur S. Leonard). She teaches courses in federal taxation, property, wills and trust and sexuality and the law. She began her career as a law professor in 2004 at the University of Texas and has taught as a visitor at a number of law schools including the University of Wisconsin, Tulane, University of Southern California, and Washington University in St. Louis. Most of her recent scholarship focuses on tax planning for same-sex couples.

Wendy S. Goffe is a shareholder with the law firm of Graham & Dunn PC, Seattle, Washington. She is also an Adjunct Instructor at Seattle University Law School. She is a Fellow of the American College of Trust and Estate Counsel and a member of the ACTEC Journal Editorial Board. She has a comprehensive estate planning practice that involves all aspects of estate planning for high net worth individuals and families, advising both individuals and charitable organizations concerning planned giving, probate, and trust administration. She is member of the YWCA Planned Giving Committee, The Nature Conservancy Planned Giving Committee, The Seattle Foundation Professional Advisory Council, and the Children’s Legacy Council of the Children’s Hospital Foundation. She is a past member of the Executive Committee of the Estate Planning Council of Seattle, the Acquisition Committee of the Tacoma Art Museum, the Executive Committee of the WSBA Real Property, Probate and Trust Section, and the Ethics Committee of Valley Medical Center. She is also a past member of the Board of Directors and Grants Committee of The Women’s Endowment Foundation, a supporting foundation of the Jewish Community Endowment Fund, Seattle, Washington

Tamara E. Kolz is a partner in the Private Wealth Services Section of Holland & Knight, LLP, Boston, Massachusetts. Ms. Kolz represents clients in the areas of estate planning, wealth preservation and transmission, business succession planning, estate and trust administration, prenuptial agreements and cohabitation agreements. In representing firm clients, Ms. Kolz devises strategies to minimize gift and estate taxes while preserving and passing wealth consistent with clients' goals and philosophies. Ms. Kolz has particular expertise in providing comprehensive advice to same-sex couples and clients with nontraditional families.

 

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SAMPLE CERTIFICATION OF DOMESTIC PARTNERSHIP

I.    DECLARATION  

We, _____________________ and _____________________ certify that we are domestic partners in accordance with the following criteria.

 

II.    STATUS

1. We are currently unmarried, at least eighteen (18) years of age, reside with the other partner and intend to continue to reside with the other partner for an indefinite period of time.

2. We are not related to the other partner by adoption or blood.

3. We are the sole Domestic partner of the other partner, with whom we have a close, committed and personal relationship, and we have been a member of this Domestic Partner relationship for at least six (6) months.

4. We undertake financial and other obligations for the other partner, including joint responsibility for the basic living expenses and welfare of the other.

5. We meet (or agree to meet) the requirements of any applicable federal, state or local laws for Domestic Partnerships.

6. We demonstrate financial interdependence by submission of proof of three (3) or more of the following documents:

        a. Legally valid marriage certificate, domestic partner agreement, or registration;
        b. Joint mortgage or lease;
        c. Designation in one partner’s will, trust, or other agreement showing the other partner as primary beneficiary;
        d. Durable property or health care power of attorney in one partner for the other;
        e. Joint ownership with the other partner of an automobile, a joint bank account, or credit account, or other substantial assets; or
        f. Such other indications of economic interdependency under the circumstances of the particular case.

III.    ACKNOWLEDGEMENTS

______________________ [DATE]

______________________ [DATE]

[NOTARIZED SIGNATURES]

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Table of Contents

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Abbreviated Table of Contents

I.      Introduction: Estate Planning for the Unmarried Couple
II.     Ethical Issues of Joint Representation
III.    Same-Gender Marriage and the Defense of Marriage Act
IV.   Cohabitation Agreements and Similar Arrangements
V.    Wills, Revocable Trusts, and Nonprobate Transfers
VI.   Methods to Minimize Taxes
VII.  Charitable Planning
VIII. Planning for Personal Needs
IX.   Strategies to Minimize Conflict
X.    Basic Tax and Estate Planning for Same-Sex Couples
XI.   Representing Lesbian and Gay Clients
XII.  Insurance Planning: What Constitutes an Insurable Interest

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