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Top 5 Ways to Protect Your Family

Inheritance Rights
Do not assume that Oregon law will take care of you.  If you are not married, or your marriage is not recognized, then without a Will your partner will not receive your probate estate at your death.  A Will not only affects inheritance rights, but can also give your partner the right to control your estate at your death, and, if you have children, name who will take care of them.  Joint ownership and beneficiary designations are good options in some situations, but typically do not provide the whole answer.

News alert for married couples who have Wills:  A Will is automatically revoked by a subsequent marriage.  Therefore, if you were married this spring, your previous Wills in favor of each other may have been revoked.  Do not assume that the back up plan Oregon has for married couples will meet your needs.  For example, if you have children that are not also the children of your spouse, one-half of your estate will pass to your children and one-half to your spouse.  Regardless of the outcome of the court case, the safest course is to contact your attorney and do a simple amendment to your Will preserving any estate planning you may have done prior to getting married.

Being Prepared for Incapacity - Authority to Handle Finances
Powers of Attorney for Finances allow you to give one another authority to make financial decisions in the event of one partner’s incapacity.  Regardless of marital status, Powers of Attorney for Finances are necessary.  Examples of actions a spouse or partner may not automatically make include selling the house; obtaining a mortgage; dealing with life insurance and retirement plan companies; canceling credit cards; and forwarding the mail.  There is no one form for a Power of Attorney.  Make sure that the one you are using includes the ability for your spouse or partner to use income and assets to pay family expenses, even if she or he may benefit.

Being Prepared for Emergencies - Authority to Make Medical Decisions
Advance Directives allow you to name each other to make health care decisions in the event one spouse or partner loses capacity to make such decisions.  It gives authority to access health care information and ensures visitation rights in the hospital.  The Advance Directive also gives you the ability to spell out your wishes with respect to life support.

If a Court Gets Involved - Who Will Be Appointed?
With Powers of Attorney for Finances and Advance Directives in place, it may never be necessary for a judge to appoint a guardian or conservator if you or your spouse or partner become incapacitated.  However, even with these protections in place, sometimes a court becomes involved.  This is particularly true if there are family members who do not want to recognize the relationship.  By executing a simple Nomination of Guardian and Conservator you provide evidence of your wishes regarding who should serve in those roles in the event a court must name someone to make personal care or financial decisions.

Being Prepared for Death - Authority to Make Decisions About Disposition of Body
Directives Regarding Disposition of Remains allow you to give one another authority to direct the disposition of your remains at death.  Without such documents, each partner’s next of kin has that authority.  Spouses are considered next of kin and can make these decisions for one another but, given the state of flux in the law regarding same-sex marriage, having directives in place is the safest course.

Additional information on estate planning for unmarried partners and same-sex married couples is available here: www.fitzwatermeyer.com

Click on the "Estate Planning" tab at the top of the homepage for tabs entitled "Same Sex Marriage" and "Unmarried Partner," both of which address estate planning issues relevant to same-sex couples. To download the Advance Directive form, click on the "Client Resources" tab. For more detailed information (including information geared toward professionals), click on the "Presentations" tab on the left hand side of the homepage.

There you will find three articles:
  • Planning for Everyday Life - Estate Planning for Nontraditional Couples
  • Practice Implications: Estate Planning for Same-Sex Married Couples
  • Transfer Taxes- Estate Planning for Nontraditional Couples

  • You can order Advance Directive forms yourself by clicking here.

    For a list of attorneys with experience in  estate planning for same-sex couples,
    click here. Scroll down to “Legal Services” for a listing of attorneys.

    For more information on Same-Sex Marriage in Oregon,
    click here.
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