If you are part of a same-sex couple, you should indicate your marital status in your will because it could have an effect on how your estate is divided.
If you’re married, you may not be sure whether you should identify yourself as married or single in your will, given that some states recognize your marriage and others don’t.
- If you and your partner live in a state that recognizes same-sex marriages, in your will, state that you are married.
- If you got married and then moved to a state that doesn’t recognize same-sex marriages, you can still state that you’re married when you make your will. Even if your current state doesn’t acknowledge your marriage, your partner will receive everything that your will directs. You may want to attach a signed letter to your will that expresses your wish that your partner be treated in all ways as your legal spouse.
No matter where you live, you can leave your property as you wish, subject to your spouse’s rights.
If you registered your partnership in a state that offers benefits to same-sex couples and you still live in that state, you should indicate your relationship status in your will. You and your spouse likely have inheritance rights under your state’s domestic partnership laws, so it is a good idea to alert your executor to your relationship status.
If you have not registered your partnership in the state where you live or if you no longer live in the state where you registered, you should make your will as a single person. Indicating that you are single does not limit your ability to leave property to your partner or to name your partner as executor of your will or guardian of your young children. You can do all of those things in your will.
If you’re not sure of your marital status.
If you’re confused about the legal status of your relationship, you’re not alone. A good estate planning lawyer who specializes in issues affecting gay and lesbian couples can provide you with the latest information for your state and answer questions about making the best estate plan for your situation.
You can look to Nolo’s Lawyer Directory to find an experienced estate planning lawyer near you.
More Information for Same-Sex Couples
For detailed information about the many legal issues faced by same-sex couples, see A Legal Guide for Lesbian & Gay Couples, by Emily Doskow, Frederick Hertz and Denis Clifford (Nolo). For a comprehensive discussion about the complex and ever-changing rules of same-sex relationship laws, see Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Emily Doskow and Frederick Hertz (Nolo).
Learn more about Same-Sex Relationships in Your State.
Learn more about Estate Planning for Same-Sex Couples
Learn more about LGBT Law.