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The Plain English Attorney

While there is a limited amount of protection for married couples who fail to write down their wishes, there is absolutely no protection for unmarried couples and their families. Same-gender couples, unmarried couples and married people with step-children are particularly at risk.

In our comprehensive domestic partnership estate plan, most of the estate planning is handled through the Revocable Living Trust, and a Last Will and Testament is used to “Back up” the Trust by placing any overlooked probate property into the Trust and by handling several other matters that are best left to a Will. These matters are:

Without a Will, Your Burial Plans are Left to the Whims of Relatives

Without a Will, when a person passes on without leaving specific burial instructions, their relatives decide how the service should be conducted, what type of burial is to be performed, and how much money will be spent on the funeral process. Grief-stricken families may be talked into needless services and “extras” by unscrupulous funeral home directors or, as is more often the case, their own desire to give “only the best” to their deceased loved one. In addition, same-gender or unmarried partners are frequently brushed aside by the family members and not allowed in the planning process at all (if they are even allowed into the service.)

A person who may have wanted a $1,000 cremation while wearing their softball league uniform and a simple service may end up with a $15,000 burial in an expensive casket while wearing a tuxedo — all because they didn’t bother to write down their wishes beforehand.

Wishes For Custody of Minor Children are Unheard

Parents who have a minor child could be setting them up for a childhood they wouldn’t have wanted for them if they didn’t carefully select guardians and name them. While this is less common in unmarried partnerships, there are many couples that are responsible for minor children. Even if they are not the primary caregivers, if something does happen to them the child’s future remains uncertain.

A court will always end up making the final decision, but an unfit brother who would be the last person you want to raise your child may be favored over your partner or the lifelong friends you trust implicitly. A court will not consider what you may have wanted if you had chosen to write it down, but it will instead use its own judgment, morals and preferences to arrive at its own conclusion.

If you have any questions or would like our firm to assist you with a Living Will for a Domestic Partnership and other estate planning needs, then please contact our office at (919) 844-7993.

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