Why a New Mexico Estate Plan Is Especially Important for Same-Sex CouplesWhile a carefully thought out estate plan can preempt potential problems and ensure that your wishes are honored in the event of your passing or incapacity, the law sometimes provides a “backup” option for married couples. A spouse will generally inherit a substantial amount of the net estate of a husband or wife who dies intestate (i.e. without a will or trust). If you are incapacitated, a spouse also will typically be granted access to your medical test results and given the authority to make decisions regarding extraordinary life-sustaining measures and other health care diagnostic and treatment decisions. If you pass away, your spouse also generally will be allowed to make burial and funeral arrangements. While these backup options may not be perfect because they have not been tailored to fit your specific goals and preferences, same-sex couples have no backup option without constructing an estate plan.

While many in the same-sex community celebrated the recent U.S. Supreme Court decision that struck down the portion of the Defense of Marriage Act (DOMA) that defined marriage as being a union between “one man and one woman,” the law did not eliminate the roadblocks faced by many same-sex couples regarding inheritance, authority to make medical decisions, rights regarding burial and funeral arrangements, and similar issues that are generally governed by New Mexico state law. Because gay marriage has not been legalized in New Mexico, estate planning documents are essential to protect a long-term partner in a same-sex committed relationship when it comes to basic estate planning issues. Under New Mexico law, long-term committed gay and lesbian couples are legal non-entities, so they have no right to make these critical decisions that would normally fall to a spouse in the absence of estate planning documents.

Because there is no de facto “Plan B” under New Mexico law without a lawful marriage, our New Mexico Same-sex Estate Planning Attorneys have identified a few documents that gay committed couples may want to consider to protect their respective rights.

Will or Trust:

While there are advantages and disadvantages when choosing a will or trust for purposes of indicating who should inherit your property if you reside in New Mexico, a same-sex partner will inherit nothing under New Mexico intestate law unless the couple is lawfully married in a state that has legalized same-sex marriage. New Mexico intestate law governs the distribution of your assets in the absence of a will or trust. Intestate law in New Mexico directs that your assets be distributed to designated relatives in the absence of a lawful spouse.

Medical Information:

If your life partner suffers a life-threatening injury or terminal illness, the inability to obtain access to medical information or even visitation of your partner can be devastating. If you do not have a HIPPA authorization that provides permission for health insurers and medical providers to release information to your significant other, however, they may refuse to provide such information to avoid liability for violating your privacy rights under the federal statute. A life partner may even be excluded from your room if family members object, so it is important to provide your significant other with a health care power of attorney and an advance health care directive if you want him or her to exercise decisions about your health care during a period of incapacity.

Control of Assets:

If you do not have a financial power of attorney that empowers your partner to manage your financial affairs in the event of your incapacity, critical financial matters may not be handled, and/or your partner may not be able to obtain access to necessary bank accounts. If your family is not accepting of your same-sex relationship, the risk of conflicts over control and management of your assets and money in the event of future incapacity increases significantly.

Burial/Funeral Arrangements:

A burial/funeral service is an important part of saying goodbye and honoring someone that you love when they pass away. Because same-sex partners do not have legal status as a married couple in New Mexico, it is important to take precautions to ensure that your life partner is authorized to make decisions and participate in carrying out your wishes for memorial and burial service in conformity with your preferences. These decisions will fall to your family members who may have the power to exclude your partner without appropriate documentation to indicate your wishes.

New Mexico Counties and The Legality of Same-Sex Marriage

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

If you have questions about New Mexico estate planning to protect your life partner, our New Mexico Estate Planning Law Firm may be able to help. The New Mexico Estate Planning Attorneys at Jay Goodman & Associates Group, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.



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