Elder Law and the Same-Sex Couple

Aimee Bouchard (attorney, Springfield, MA) and Kim Zadworny (attorney, Northampton, MA) have written an article entitled Growing Old Together: Estate Planning Concerns for the Aging Same-Sex Couples, 30 W. New Eng. L. Rev. 713. Here is a summary of the article:

[The article takes] a closer look at same-sex marriage in Massachusetts and the impact marriage has on estate planning considerations for couples who choose to marry and couples who do not. … Although civil unions provide state benefits similar to those provided to married couples, those rights do not transfer if the couple moves out of state and the rights are not recognized federally. … The California Domestic Partner Rights and Responsibilities Act states that same-sex domestic partners will be treated like heterosexual married partners in the event of the death of one spouse. … Depending on the laws of the state, this means that a surviving partner may be entitled to support from an executor while an estate is in probate, that he or she may be entitled to an elective spousal share should the partner decide to elect against a will, and, if his or her partner dies intestate, that the surviving partner will be granted the deceased partner’s estate before children or parents. … In Massachusetts, for example, a surviving spouse may waive the will and take one-third of the decedent’s personal property and one-third of the real property if the decedent had children. … The settlor can also establish a trust so that its assets do not go through probate, but instead pass instantly to the surviving partner or family. … It may also give the health care proxy, and partner, reassurance that difficult end-of-life decisions are the right choice.