Long gone are the days when most families looked the same: mom, dad, and kids who are the biological children of both adults. This nuclear family still exists, of course, but there are so many other forms of family: families with same sex parents; unmarried adults living together; blended families with children from previous relationships as well as the current one; single parents and children; grandparents raising grandchildren, and many more. These families may have unusual needs when planning for the future, so it’s worth taking a look at estate planning for non-traditional families.
First things first: Ohio’s intestacy laws (laws dictating how a deceased person’s estate is distributed when there is no will) contemplate a so-called “traditional” family structure. If your family doesn’t fit that narrow definition, you absolutely cannot rely on the law to intuit and carry out your wishes. You must have an estate plan.
The legalization of same-sex marriage has offered a lot of protections that previously were not available to committed same-sex partners. Even so, it is unwise to count on the law protecting your interests or those of your partner or spouse. The more specific and deliberate you can be, the more likely your wishes are to be both known and honored. This is especially true if there has been conflict between your family of origin (parents, siblings, etc.) and the family you have created (partner or spouse).
Having an estate plan helps to protect your partner from biological family members who might initiate a probate dispute in order to challenge your partner’s right to all or part of your estate. There are some ways that you can bolster your planning to prevent this.
One way to stave off a will challenge is to use a “no-contest” clause in your will. Such a clause, also known as an “in terrorem” clause, states that a person who challenges your will loses their right to any inheritance under the will. Of course, in order for this to be effective, you would need to leave an anticipated challenger a large enough bequest that they would think twice about risking it. If a potential challenger’s motivation to dispute your will is hostility toward your partner, rather than a desire for financial gain, a no-contest clause may not be effective.
Another option is to designate your partner as beneficiary on life insurance and retirement benefits. These assets pass outside of probate, and these types of beneficiary designations are typically difficult, if not impossible, to challenge. However, beneficiary designations only apply to certain types of assets.
The best option to protect your partner is probably also the most comprehensive and simplest: create a living trust. A living trust can encompass financial accounts, real estate, artwork, vehicles, and other assets. You control the assets in the trust while you are alive, and they pass outside of probate after your death. While trusts can be challenged, such challenges are rare and typically more difficult than a will contest.
Estate planning isn’t just about what happens to your possessions after you die. Everyone should have powers of attorney in place in the event they become legally incapacitated during their lifetime. This is especially true for non-traditional families, whatever their form.
You should have a financial power of attorney in place so that, in the event of sudden accident or illness, someone can manage your financial affairs on your behalf. You can make this power as broad or as narrow as you want it to be, and arrange for it to be “springing” so that it will not take effect unless and until it is needed.
A health care power of attorney is also essential. This document authorizes an agent to make healthcare decisions on your behalf if you are unable to express your wishes. This is not a so-called “living will.” A living will sets forth what kind of treatment you would want given or withheld in terms of end-of-life care. This document can be an invaluable guide to your agent under a health care power of attorney, but it is not a substitute for a POA. You should also execute HIPAA releases with your care providers so that they can provide your healthcare information to your chosen agent if needed.
If you intend to provide for the needs of children of whom you are not the legal parent, such as grandchildren you are raising, such as grandchildren, foster children, stepchildren, or the children of a partner to whom you are not married, you need to be especially careful in your estate planning documents. While you may consider someone your “child” for all intents and purposes, the law may not. Therefore, rather than referring to a class of people (“my children”) in a document, refer to your intended beneficiaries by name so there can be no doubt of whom you intended to include.
If you are the legal parent of a minor child, you should also think about who will be their guardian in the event you die or are unable to care for them. Speak with an experienced Ohio estate planning attorney about the best way to make sure your wishes are honored and your child is cared for by the person you intend.
All families deserve protection, no matter what they look like. We invite you to contact our law office to design a plan for yours.
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