Most families don’t look like this
The typical nuclear family of husband, wife, 2.3 kids, dog and white picket fence once dominated the American landscape. Although traditional families like this are certainly still prevalent, non-traditional family structures are becoming increasingly common. And as their popularity increases, so too does the need for individual planning to address the specific needs of these groups. Unfortunately, online “DIY” estate planning companies often ignore these changes and treat clients with a one-size-fits-all approach. Below are some examples of people and family structures that might face some unique planning challenges that would warrant working one-on-one with an estate planning professional.
Married, same sex couples have the same rights as married heterosexual couples – the key question is whether they’re officially married. For a long time, the right to marry was denied same sex couples, and although it exists now, many – especially older couples – have chosen not to do so. Unfortunately, Virginia won’t recognize this domestic partnership as a legal marriage and will deny the same rights to cohabitating couples who aren’t wed. For individuals in this situation, the only way to ensure your partner receives their intended inheritance is by making this clear in a Will. Similarly, the only way to ensure your partner is your primary decision-maker in a time of need is to state your intentions clearly on a legal document.
Cohabitating couples or parents
Virginia has no common-law spouse provision. As far as Virginia is concerned, if it looks like a duck, and it quacks like a duck . . . (unless it’s gone through the formal process of obtaining a state-sanctioned marriage license), it’s not a duck. Couples who treat each other as spouses but aren’t officially married are not eligible for the same rights and privileges Virginia gives to married couples. So, just like with the same-sex couples mentioned above, it’s crucial to designate your domestic partner on health directives, powers of attorney, and in your Will, if you want those same rights to apply.
Single parent families
For single parents with children, designating a guardian is crucial to protect them in the event of the unthinkable. Most couples designate each other as primary decision-maker in the event of incapacitation – for single parents, a clear designation of family member or close friend will prevent turmoil in the event of an accident.
A lawyer friend once described a scenario he encountered with two clients years ago. The husband had a son from a previous relationship and the wife had a daughter. Both wanted to provide for the surviving spouse, then to both children equally. The lawyer explained the options and the husband and wife agreed a simple Will would be sufficient. Shortly thereafter the husband passed. The wife called the lawyer within a week, asking to revise her Will and remove the son.
This scenario is fortunately rare, but underscores the need for advance planning, along with an honest and frank discussion of goals. Would a trust have better served their needs and protected the son’s interests? Or perhaps a contract to prevent Will revisions in the future? Blended families have unique considerations that must be addressed through a thoughtful conversation of options.