While the laws regarding same sex marriage underwent considerable change with the U.S. Supreme Court’s decision in Obergefell v. Hodges, statutes regarding probate for unmarried couples have not. In Maryland, two people who have not tied the knot are essentially treated at death of one or the other as unrelated friends, regardless of sex. Fortunately, there are strategies for addressing probate issues, which will make the process easier on your surviving loved ones when you die.
Our Maryland probate attorneys have in-depth knowledge of the probate laws that affect all types of family and non-family relationships. Please contact our office to schedule a consultation regarding your objectives and learn about options regarding probate for same sex unmarried couples.
Execute a Will
Your Will is the core of an estate plan, in which you appoint an executor to manage your estate assets, pay creditors, distribute bequests to beneficiaries, and handle other important tasks. If you do not have a Will, your estate is distributed according to Maryland’s laws of intestacy. The statutes dictate who can be appointed as your personal representative and who will inherit your real estate and personal property. Your family members, even distant relatives, will have priority over your same sex partner. This can be avoided by properly executing a Will or Trust. Additionally, assets can be titled such that the same sex partner receives the assets outright without having to go through the probate process, such as the use of beneficiary designations and deeds that are properly drafted.
Prepare Powers of Attorney
Powers of attorney are effective during your lifetime if you cannot make decisions due to illness or incapacity. There are two types of powers of attorney in Maryland:
- Durable Power of Attorney for Property: You appoint an agent to step into your shoes to manage all of your financial and personal affairs, including real estate and personal property; and,
- Medical Power of Attorney: You appoint an agent to make decisions regarding your health care, such as surgery, medications, and related treatment.
Without these documents, a court must appoint someone to handle medical and financial decisions on your behalf. As with an intestate estate, your same sex partner is considered an unrelated family member. He or she will not have power to act for you unless you make the appropriate appointment under powers of attorney.
Consider Strategies for Avoiding Probate
There are ways you can avoid having certain assets become part of your probate estate when you die. Same sex unmarried couples can use these structures to pass ownership interests without going through the probate process. Options include:
- Holding title to assets as joint owners with right of survivorship, in which ownership is transferred to the surviving co-owner upon the death of the other;
- Using pay-on-death instructions for accounts, where the person you name as beneficiary will inherit the funds upon your death; or
- Designating a beneficiary on life insurance policies so the proceeds are paid to your same sex partner when you pass away.