Legal planning for unmarried same-sex couples

For gay and lesbian couples who choose not to marry pursuant to the Illinois Marriage Fairness Act or enter a civil union under the Illinois Civil Union Act, an attorney can work with them to establish obligations, responsibilities, protections and benefits similar to those of married same-sex couples. An attorney can also help those couples dissolve or modify those same obligations, responsibilities, protections and benefits should that become necessary.

Forming relationships

One way an attorney can help unmarried same-sex couples is through using the law to create ways in which your relationship is recognized and honored. This can be accomplished in a variety of ways including estate planning, adoption, real estate acquisitions and domestic partnership agreements.

There are numerous estate planning tools available to same-sex couples, including:

  • Wills: A will lets you decide who gets your property upon death. For unmarried persons, the default is biological family, but a will can be used to designate a partner as a beneficiary in the will.
  • Powers of attorney: A power of attorney allows you to appoint the person or persons who can make decision on your behalf if you are no longer able because of incapacity. Powers of attorney can be used to name individuals who can make decisions regarding the management of your property and to execute legal documents. A durable power of attorney for health care can be used to ensure your partner is able to visit you in the hospital, make medical decisions on your behalf, access bank accounts and sell property. You may name anyone who is at least 18 years of age and competent to act as your agent.
  • Trusts: Trust can be used, among other things, to direct the care of minor children, minimize taxes and protect assets from creditors. Your partner may be named a beneficiary and even the trustee.
  • Non-probate transfers: Life insurance, lifetime gifts, joint ownership of assets and payable on death (POD) accounts are ways to pass property to your partner outside of probate.
  • Domestic Partnership Agreements: A domestic partnership agreement is a contract between you and your partner that spells-out clearly all rights and obligations with respect to property, including investments, real estate and personal property.
  • Adoption: In Illinois, a couple who is not married may adopt. This allows for the non-biological parent to become the legal parent of your children even if the parents choose not to marry or enter into a civil union.
  • Real Estate Acquisitions: Making sure your own your property in joint tenancy in important, so that when the first of you dies, the other one receives full title to the property without going through probate or the biological family of the deceased partner doesn't have any claims to partial ownership.

Dissolving relationships

Lawyers can help unmarried same-sex couples dissolve relationships in a manner similar to divorce. Issues that arise, and for which legal guidance is helpful, involve property division, child custody, and spousal or child support. Estate planning documents also need to be updated and revised to reflect your new situation. Old wills may need to be revoked, new wills and trusts may need to be drafted and life insurance and other beneficiary designations changed.

Speak to an estate planning and probate attorney in Chicago

If you have questions about gay and lesbian estate planning or LGBTQ family law matters, contact Jill M. Metz & Associates today to schedule a consultation with one of our attorneys.

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