subject: Estate Planning for LGBT couples in Utah [print this page] Estate Planning for LGBT couples in Utah Estate Planning for LGBT couples in Utah
While Utah law does not recognize a life partner and makes it very difficult for same sex couples to make medical, financial and burial/cremation decisions for one another, these disadvantages can all be overcome with basic estate planning.
1 - Get a plan
If you're going to enter into a relationship with someone of the same sex in the state of Utah, you should have a plan - an estate plan, that is. Because you can't create a legal relationship through marriage (and marriages in other states or countries that do recognize same sex marriage offer no benefit), your partner will not inherit from you if you die. He/she will also not be able to make medical decisions for you if you become incapacitated. And if you die, your partner will not have any say in carrying out your burial or cremation wishes.
2 - Who will?
Your family or closest relatives. Utah probate statutes provide a default plan for transferring your assets to others after your death if you have not take action to do so. If you are married or have children, your family will be taken care of (at least to some extent) if you have prepared a will or trust. However, if you're in a same sex relationship and you want your partner to benefit from your estate, you absolutely have to take some affirmative action to ensure that will happen. For accounts and other financial products, beneficiary designations can get your money to your partner, but for real property, a will is required to transfer the property to someone other than closest relatives if it is held solely in your name. Owning assets together (joint tenancy) can also largely solve this problem, but can also create additional difficulties, so it pays to discuss the various options with a good estate planning attorney.
3 - Medical decisions
Utah statues also direct that family members will enjoy priority in making your medical decisions if you cannot do so for yourself. If you want your partner to have this power, you must execute an Advance Health Care Directive naming your partner as your health care agent. This can be an extremely important decision for many members of the LGBT community. Utah code provisions also dictate that a will can name a personal representative and give that person the authority to carry out his/her burial/cremation instructions. If there is no such grant of power, these decisions again fall to family members, who may not make decisions consistent with your desires.
4 - Want privacy?
Many same sex couples have concerns that their family members will object to the distribution of their estate to their life partner instead of benefiting family members, especially when the family members do not agree with the lifestyle or decisions of their gay/lesbian relative. If this is a concern, consider using a trust to control the distribution of your estate. Trust planning, if done correctly, will avoid the public probate process and hopefully reduce the possibility of a family member objecting to the distribution.
5 - Use property agreements
Because you can't marry in Utah, there is no divorce court to sort out the equities of your relationship, should you eventually end it. If you own real property together, having a property agreement that spells out who is entitled to what equity in the property will help you avoid the possibility of losing a big chunk of equity to a partner that you brought on to the title to the property long after you had purchased it and paid down your mortgage. In the past year alone, I have been approached by at least 5 people faced with dividing their property equally with their former partner, because they didn't have any thing in writing to the contrary. If you will have unequal interests in an asset, this should be spelled out in an enforceable contract.
