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A report published by the U.S. Census Bureau in 2009, showed that more than 60% of Americans had been married at least once by age 30 and at least 10% of Americans had been divorced by age 30 (https://www.census.gov/prod/2011pubs/p70-125.pdf). If a “traditional” household includes a husband, his wife, and the children conceived by them and born during their marriage, the census data tells us that many households are not traditional. This article highlights the special estate planning issues that non-traditional households need to address.

A very bitter court battle raged in 2007 about whether Patrick Atkins, an incapacitated homosexual man, should be cared for by his parents or his homosexual partner of 25 years. Patrick’s parents won guardianship over their son, but the Court awarded visitation rights to Patrick’s partner, Brett Conrad. The 2015 Supreme Court ruling in favor of same-sex marriage could have eliminated the Atkins controversy if that couple had married before Patrick’s health crisis, but the case highlights some of the difficult issues that face many non-traditional families – both gay and straight.

Unmarried cohabitation (sometimes called “living together” or “shacking up”) is not a new way of life. The legal problems associated with the lifestyle aren’t new either, but the modern legal environment aggravates some of the problems.

Most of us think more about dying than becoming disabled. Patrick Atkins must have thought that way too because he left no plan for how to care for him before a stroke damaged his brain. He could have made a power of attorney and an appointment of healthcare representative to determine in advance who should call the shots for him, but his failure to plan resulted in heartbreaking conflict.

Indiana guardianship law honors a person’s nomination of a guardian in the person’s power of attorney. If a person does not make a power of attorney and nominated guardian, the law provides a prioritized list of guardian candidates, beginning with the most closely related family members. An unwed life partner is not a family member under Indiana law, which is why Patrick’s family could prohibit his partner from visiting Patrick at the hospital.

Life partners can appoint each other to make decisions for each other through a thoughtfully prepared estate plan. People should carefully choose primary and backup decision-makers that will act responsibly in a crisis. This can be a big problem not just for unmarried people, but also spouses in a second or subsequent marriage. If the backup decision maker dislikes the primary decision maker, or vice versa, he or she may exclude the other person from the information loop. Too many people take this issue for granted and spend too little thought about the consequences of their choices.

Non-traditional families risk terrible hardship when they share assets, become dependent on each other for income and one partner dies. For example, if a man and woman buy a house together and he dies prematurely, she will not receive Social Security survivor’s benefits to help her pay the mortgage payments. Furthermore, if he owns assets in his name, alone, his biological family will get those assets instead of his surviving partner. To add insult to injury, the man’s kin can plan his funeral and completely exclude the surviving partner.

Skillful asset planning is even more important for non-traditional families than for traditional families. At a minimum, both partners should hire an attorney to prepare wills for them and to evaluate their asset ownership. In many cases, trusts and other estate planning strategies may serve the couple well.

Every adult should make an estate plan before a crisis strikes. For unmarried couples, failure to plan can turn crisis into tragedy. It may take time and money to plan, but planning beats the alternative hands down every time.

Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation;  a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.

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