The short answer is yes. Explained by Eleanor Doermann.
The long answer is that for many years, LGBT folks have been told how important it is to have a will because we had none of the legal protections of marriage or registered domestic partnership, and the state laws of intestacy (inheritance without a will) left same sex partners high and dry. This lack of any formal legal status in Washington prior to 2007 coupled with a higher likelihood of family members disapproving of an LGBT person’s choice of partner resulted in heart wrenching scenarios. A gay man whose partner died in the 1980’s recently shared with me that right after his partner’s funeral, his partner’s family arrived with a moving van and emptied their house of anything that he could not produce a receipt for, and without a will in place there was nothing he could do about it.
Is having a will any less important now that same-sex couples can be legally married? In essence a will is your set of instructions about who should get your property when you die, and it is often part of a larger overall estate plan which might also include non-probate assets such as life insurance policies, retirement accounts, or trusts. Today, if you are legally married or partnered and you die without a will or other estate plan in place, your surviving spouse or partner will not be so badly off as before. However without a will, the State of Washington still might not distribute your property in a way that either of you would have wanted. It is not as simple as your spouse getting everything. Exactly how your property will be distributed will depend on who all your surviving legal family members are. Here are the basic intestacy rules:
- If you have a spouse or registered domestic partner and
- You have children: When you die, your spouse or partner will get your share of your community property, with the result that all of what you owned together now belongs to him or her. (For more discussion of what constitutes community and separate property, see my last post: click here.) In addition, your spouse or partner will get half of your separate property, with the other half getting divided amongst your children.
- You do not have children (or do not have a legal parent relationship to the children in your life.): Besides receiving your share of community property, your spouse or partner will get three quarters of your separate property, and the remaining quarter will go your surviving parent(s). If there is no parent, the remaining quarter goes to your surviving sibling(s). If there is no sibling, all of your separate property goes to your spouse or partner.
- If you do not have a legal spouse or registered domestic partner and:
- You have children: All of your property will be divided amongst your children.
- You do not have children (or do not have a legal parenting relationship to the children in your life.): All of your property will go to your surviving parent(s). If there is no parent, all will go to your surviving sibling(s), then to grandparents, then aunt and uncles, in that order.
- You are in a long-term committed relationship but do not have a legal status together.
- The rules under #2 apply. When it comes to intestacy, the law does not recognize the family roles and relationships that members of the LGBT community have claimed and created in all the years before legal recognition of those relationships became available. Without a will or some other non-probate beneficiary designation naming your partner, he or she will get nothing.
How this might work is best illustrated by an example. Let’s say you are married without children and your primary asset is your house which you bought before you got married. Under community property law, the house would be presumed to be your separate property. Applying the rules of intestacy outlined above, your spouse would receive three quarters of the house, and the remaining quarter might go to your mother or brother, depending on who is alive. This could become complicated for your surviving spouse!
Drafting a will is one of those tasks that almost everyone finds a way to avoid and puts off until another day. Especially if you are in reasonably good health, there is always something to take care of that seems more urgent and pressing. Most of us do not like to dwell on it, but one certainty in life is that none of us know what tomorrow may bring, and sometimes what tomorrow brings does not give us time or opportunity to go back. The good news is you can create greater peace of mind for both you and your loved ones by taking care of your estate plan now. You can do this by consulting with an estate planning attorney, and you can learn more here.
Disclaimer: This information is for educational purposes only and is not a substitute for competent legal advice from a licensed, professional attorney regarding your specific situation.
Eleanor Doermann is an attorney providing estate and life planning services for all ages and stages of life, and public benefits advocacy. As a long-time member of the Seattle LGBT community, she has a special interest in and passion for educating individuals and couples about the ramifications of post-DOMA marriage equality law. Eleanor came to the practice of law after a 25-year-career as a physical therapist. She opened Pathway Law, PC in south King County in 2013. You can learn more at www.pathwaylaw.net or by calling 206-499-3289.
