You may hear some misinformation spread around with regard to estate planning when you are not speaking with an expert, and one of the issues that is often misunderstood is that of intestacy. When you die without having a will in place you’re said to have died “intestate,” and there are those who are under the impression that people who die without a will surrender their property to the state. This is simply not the case.
If you were to die without a will the probate court will ultimately distribute your assets according to rules of descent. So if you are married your husband or wife would assume ownership of the personal property property that you left behind. Of course this does not mean that married people don’t need an estate plan because you may want to provide for people other then your spouse; the ideal vehicles of transfer vary; and there are other contingencies to address such as the possibility of incapacity.
But, if for some reason you did not have an estate plan in place your spouse would in fact be empowered to make decisions for you should you become incapacitated and he or she would inherit your property, which is what most people would want. Gay couples, however, are in a different situation.
Because gay marriages are not recognized in most states even if you have been with your partner for 50 years he or she will not assume legal ownership of your property after you pass away. And of course your partner would not automatically be the decision-maker should you become incapacitated.
This is why estate planning is even more important for same-sex couples than it is for others, and if you are engaged in such a union you are taking a huge risk if you do not have the appropriate documents in place. The intelligent course of action is to consult with an experienced estate planning attorney who will facilitate the transfer of your assets in accordance with your wishes while developing an incapacity plan that empowers your partner or any other person of your choosing to act as a decision-maker should such a need arise.