September 2007 "Non-Traditional Families Require Special Planning"
PLANNING FOR WEALTH & SECURITY
By attorneys Jennifer & Jeff Hawkins
NON-TRADITIONAL FAMILIES REQUIRE SPECIAL PLANNING
The Indiana Court of Appeals ruled in a very bitter and controversial case on June 27 of this year whether Patrick Atkins, an incapacitated gay man, should be cared for by his parents or his homosexual partner of 25 years. Patrick’s parents won guardianship over their son, but the Court awarded visitation rights to Patrick’s partner, Brett Conrad. The parents are still contesting the visitation rights to the Indiana Supreme Court.
This tragic case highlights some very difficult issues that face many non-traditional families. For purposes of this article, a “non-traditional” family is composed of two unmarried people that live together as mates – regardless of sexual preference.
Unmarried cohabitation (sometimes called “living together” or “shacking up”) is not a new way of life. The legal problems associated with the lifestyle aren’t really new either, but the modern legal environment aggravates some of the problems.
Most of us think more about dying than becoming disabled. Patrick Atkins must have thought that way too because he left no plan for how to care for him before his stroke damaged his brain. He could have left a power of attorney and an appointment of healthcare representative to determine in advance who should call the shots for him.
Without such planning, Indiana law prioritizes the next of kin in their bid for guardianship. An unwed life partner is not kin under Indiana law. Of course, Indiana does not recognize gay marriage, so Brett Conrad would never qualify as Patrick Atkins' kin under any circumstances. He was not even allowed to visit Patrick at the hospital, but the hospital staff defied the family’s instructions and let him visit after hours.
Life partners can appoint each other to make decisions for each other through a thoughtfully prepared estate plan. Care must be taken to choose other people as backup decision makers incase the first choice person is disabled or otherwise unavailable. This can be a big problem not just for unmarried people, but also spouses in a second or subsequent marriage. If the backup decision maker dislikes the primary decision maker, or vice versa, he or she may exclude the other person from the information loop. Too many people take this issue for granted and spend too little thought about the consequences of their choices.
Non-traditional families risk terrible hardship when they share assets, become dependent on each other for income and one partner dies. For example, if a man and woman buy a house together and he dies prematurely, she will not receive Social Security survivor’s benefits to help her pay the mortgage payments. Furthermore, if he owed assets in his name, alone, his biological family will get those assets instead of his surviving partner. To add insult to injury, the man’s kin can plan his funeral and completely exclude the surviving partner. Worse yet, the surviving partner gets none of the breaks that surviving spouses enjoy on the death taxes imposed on the assets that the couple owned together.
Skillful asset planning is even more important for non-traditional families than for traditional families. At a minimum, both partners should hire an attorney to prepare wills for them and to evaluate their asset ownership. In many cases, trusts and other estate planning strategies may serve the couple well. In any case, planning beats the alternative hands down every time.
THIS ARTICLE IS NOT LEGAL ADVICE. ALWAYS CONSULT AN ATTORNEY DIRECTLY BEFORE RELYING UPON THIS ARTICLE OR CHANGING AN ESTATE PLAN.
© 2007 by HAWKINS LAW PC, Estate, Trust & Business Attorneys. All rights reserved. Published with permission.