While marriage equality in California is once again on hold pending appeal, many of the rights domestic partners associate with marriage remain available through private, legal planning. The right combination of a trust, powers of attorney, and a domestic partnership property agreement can provide partners with rights superior to those provided by a state marriage certificate.
The recent rulings regarding California’s ballot initiative that outlawed gay marriage in 2008 provided a rollercoaster ride up and down the state court system with the California Supreme Court finally affirming the ban in May of 2009 while recognizing and affirming the same-sex marriages performed before the ballot initiative passed. However, Chief U.S. District Court Judge Vaughn Walker ruled this past month that the ban violates the fundamental right to marry guaranteed under the U.S. Constitution and relevant cases. However, on August 17, 2010, the 9th Circuit U.S. Court of Appeals squashed the possibility of marriages to resume immediately pending their examination of the case.
But despite the monumental rulings and the possibility of overturning the California’s marriage ban, and possibly all other state bans, the rights people normally associate with marriage remain readily available to domestic partners regardless of their state of residence. “While marriage equality has to come sooner or later, there is no need for partners to wait to gain many of the rights people believe comes with marriage,” said Jeffrey G. Marsocci, and attorney and author of Estate Planning for Domestic Partners and The Gay Marriage Alternative. “The federal court system now holds the fate of Proposition 8 and the right to marry in its hands, but partners have the ability to seize rights through good partner protection planning.”
With all of the hoopla surrounding gay marriage in the media, it is easy to think that all domestic partner planning problems would be solved if only marriage were available to them. However, state laws provide a very different reality. In most states, a marriage certificate does not come with full partner inheritance, the ability to access financial accounts, or the ability to direct healthcare decisions in another state. For example, most people associated being married with having automatic inheritance from their spouse, but Connecticut provides a spouse the first $50,000 of assets and then the rest is split evenly with the next closest relative, however remotely they are related. “In Massachusetts and Connecticut, a married partner may have to split an inheritance with their deceased partner’s fourth cousin whom they both never even met,” Mr. Marsocci said. “That is not what most partners and married couples want, but that is the law. So who wants to rely on the law when they can create their own plan and get exactly what they want?”
Some of typical domestic partner goals are as combining assets together as one family unit, empowering their partner to handle medical and financial decisions should one of them fall ill, and creating an automatic inheritance for their partner while avoiding the costs and delays of probate court. None of these rights come automatically with a marriage certificate. “While each couple has their own unique goals, most couples want at least many of the same things,” Mr. Marsocci said. “That is where a Partner AB-SECURE Trust and the accompanying documents can come in.”
The Partner AB-SECURE Trust was designed by Mr. Marsocci specifically for domestic partners and unmarried couples, and it is available through his firm in North Carolina and also to the other 49 states through a company called The Estate Plan. “Rather than attempt to create a company to distribute this specialized trust directly to attorneys, we instead licensed the trust to The Estate Plan,” Mr. Marsocci said. “They already have other quality life and estate planning documents it nationally produced for attorneys, so why not help get the trust out more quickly to the public? Now couples in California, North Carolina, and the other 48 states can take hold of the rights they want, right now, and not in some time in the distant future.”
“Partners who truly want to protect each other and provide full inheritance rights and empower their partner to handle medical and financial matters during a time of crisis can not depend on a marriage license to protect them,” Mr. Marsocci said. “That can only happen by having the right documents, in the right place, and at the right time.”
Jeffrey G. Marsocci, Esq. is the founder of The National Institute for Domestic Partner Estate Planning, and he has written several books on life and estate planning available on Amazon.com. For more information partner protection planning and estate planning for domestic partners, please go to www.livingtrustlawfirm.com.