Lorie L. Burch

Now that you’ve found your perfect partner, the time will come when the two of you decide it’s time for that next step of living together. The idea is a whole lot more than just moving in or even buying a home together. But don’t let the grown-up part take the excitement out of it all. Just know your options.

As attorney Lorie L. Burch likes to say, "If you don’t have a will, the state of Texas has one for you!" It’s a simple and scary statement that’s all too necessary to get people to discuss the often-uncomfortable issue of wills, living trusts and survivorship. And while this subject matter is never easy to broach, for same-sex couples living together having a plan in place is the only way to guarantee that they will have the legal rights to carry out a loved one’s wishes.

For many LGBT couples, the first step in shoring up any living arrangements may begin with a cohabitation agreement. "Think of it as a prenuptial agreement," Burch says. "It’s a guiding document that can be as comprehensive or extensive as needed to outline the terms of property ownership or property division in the event of a split. You can also customize it to address specific issues such as which person is responsible for pet expenses." These agreements can be especially helpful for situations where one partner is listed as the sole owner of the home.

But cohabitation agreements are just one step in making sure that the assets of same-sex couples are protected. Burch also recommends a checklist of essential items ranging from proper legal paperwork to a shared list of computer passwords to assure that couples can have access to the necessary files and accounts should something happen to one of them.

"Estate planning should not be done in isolation," adds Sharon Fancher, a real estate attorney and escrow officer who has assisted many same-sex couples. "In real state, the assumption is that each couple owns half the property. If for some reason this is not going to be the case, it’s up to the individuals to make that clear. They need to tell the title company and lender how to hold title and make sure when reviewing their final papers that it reflects their wishes."

Burch recommends that all couples begin their planning with a last will and testament, without it the court determines who inherits the property and chooses the executor. But she is quick to warn about the perils of fill-in-the-box online wills. "Cheap can get very expensive quickly," she says. "Not only do many of these pre-packaged wills not address the needs of the LGBT community, many of them are created outside the accordance of Texas laws which can make them null and void in the state."

She also recommends that all of her clients complete a directive to physicians (living will), which instructs physicians to withhold or administer artificial

life-sustaining features and a Medical Power of Attorney, which designates an agent to make medical decisions if one party is not able to make them. For same-sex couples, these documents may be the only way that they will have access to a loved one as hospitals can deny access to anyone who is not an immediate family member or legal spouse. Also of vital importance is durable power of attorney. This designates an agent to make financial decision and control the property including paying bills.

Lastly, Burch suggests that clients obtain a funeral/burial designation and Appointment. As morbid as it may sound, this document is essential in dealing with the physical body of a loved one who is deceased. Funeral homes will require this in order to accept a body.

As awkward as it may be to discuss mortality, the reality is that it is imperative for couples to dialogue openly about their wishes and document them in a way in which they are legally protected.

"Losing someone is one of the most difficult times that we can experience," Burch says. "To make matters worse, most people leave their families and loved ones guessing at their wishes, or powerless to honor those wishes because they did not do some simple planning."

However, with proper planning, couples can rest assured that their property will be protected and that their loved ones will have the legal rights necessary to carry out their intentions.

Living together is more than combining dishes and furniture, but with everything in its right place, it might make it a bit more stress-free.

— Jef Tingley

This article appeared in the Dallas Voice print edition March 5, 2010.
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