ALP: While living in Massachusetts, my domestic partner and I married soon after same sex marriage became legal. In light of our recent nuptials, do we really need an estate plan?

October 2005

Absolutely.  Every married couple, as well as any unmarried couple who cohabitates, should have an estate plan that sets forth clear instructions for the management and eventual disposition of their property at death.  One should also name who will be in charge of ensuring that their wishes will be honored after they are gone, e.g. the executor.  An estate plan also helps protect the surviving spouse and domestic partner, especially from potential problems caused by disgruntled family members. 

An estate plan also should take into consideration the possibility of one becoming incapacitated, rendering them unable to handle financial and legal affairs or to make informed medical decisions.   As a result, Powers of Attorney for both financial and health care matters must be considered.  In the absence of these documents, a probate court judge is charged with the responsibility of appointing someone to make these decisions.

In light of Ohio’s and Kentucky’s Defense of Marriage Act and the amendment to their state constitutions banning same sex marriage, estate planning is crucial for all same sex couples.  At this point, a probate court judge may be hard pressed to recognize your Massachusetts marriage and provide to you and to your domestic partner the legal protections historically reserved to heterosexual married couples.  While the issues surrounding same sex marriage continue to evolve, an estate plan that not only protects you and your domestic partner, but also sets forth clearly your desires for the management and disposition of your assets, is a must for any same sex couple.