When the U.S. Supreme Court declined to issue a ruling on "Proposition 8" earlier this summer, that decision effectively reinstated the right for same-sex couples to marry in California. Because gay marriage is relatively new, people in same-sex relationships sometimes fail to attend to marriage-related business, including estate planning.
While it didn't happen here in California, a recent lawsuit shows how complicated things can get when gay couples spend their lives together but either don't get married or fail to update their wills.
In Washington, D.C., a gay man has asked a court to recognize him as the common-law husband of his long-time partner, who died earlier this year. The two men have been in a relationship and living together since 1995. Although D.C. has been issuing same-sex marriage licenses since 2010, the couple never officially got married.
The late partner's will was filed in 1990, five years before the couple got together. The will left his entire estate (worth $819,000) to the man's four siblings and named one of his brother's as the executor. The will was never changed to name the man's long-time partner as a beneficiary, which may have been an important oversight.
Now, the surviving partner is asking to be recognized as a common-law husband, and therefore entitled to a spousal share of the estate. Common-law marriage is not nearly as recognized by courts as it was in the past, and this may be the first case in which a same-sex partner is seeking common-law recognition.
While the details of this case are complex, one lesson it highlights is simple: it is important to revisit your will over time and update it if needed. It is quite possible that the deceased man simply forgot to update his will to include his partner. If the omission was purposeful, the man should have at least discussed his decision with his partner at some point.
Nobody likes to admit it, but life is fragile and death is an inevitability. Therefore, it is important to have an estate plan in place while you are in good health, and to make changes as necessary.
Source: ABA Journal, "Gay man asks DC court to declare him common-law husband of deceased partner," Mark Hansen, Aug. 20, 2013