Planning for Non-Traditional Couples in Ohio

Non-traditional couples referred to in this article are partners who choose not to marry or are legally prohibited from marrying, or even when married are denied benefits of one kind or another. Non-traditional couples include gay, lesbian, bisexual, or transgender as well as heterosexual couples. Couples may choose not to marry because marrying will diminish social security benefits or eliminate spousal support following a divorce. Other couples may be married legally, but in name only, to others. 

Some may not want all the legal entanglements that come with a marriage. Some have children whom they wish to provide for without the complications of another marriage. 

There is a fairly well established law regarding traditionally married heterosexual couples in so many areas – health, pension, divorce, property, child custody and support, and taxes, and that is just the beginning. The ideas presented pertain the LGBT couples and non-traditional heterosexual couples alike because their legal rights are generally identical. 

Problem: Non-traditional couples are not treated equally with heterosexual marriages. 

1. LGBT cannot marry in many states and non-traditional heterosexual couples may not marry without losing necessary support payment. 
2. Social Security retirement benefits are not available for non-traditional couples. 
3. Private employers have different benefits available for traditional marriages and non-traditional partnerships. 
4. Tax deductible medical expenses are available for married couples but not for a non-married partner. 
5. Health benefits provided by the employer are not included as income for a dependent spouse, but are for the non-traditional partner. 
6. Non-traditional partners may not be able to take advantage of capital gains exclusion when selling a residence. 
7. Transfers between traditional couples have no tax consequences but the same benefits are unavailable to non-traditional couples. 
8. If a partner dies without a will – the law of intestate succession will determine where the assets will be distributed and none of the recipients will be the non-traditional partner. 

Despite there issues, non-traditional couples have the same goals as traditional couples. They want to make sure their wishes are carried out in a cost effective manner; the option to choose probate or no probate; minimize taxes; choose beneficiaries; and receive employer benefits for their partner. 

Non-traditional couples, more than traditional couples, need to avoid intestate succession. If their beneficiary is a non-traditional partner, a will is a must. 

The law permits designating Guardian in POA, which trumps next of kin. 

If a non-traditional partner wants the other partner to manage his or her finances, a durable power of attorney in the event of his capacity is important. If the court becomes involved in the case of guardianship, family members or others may file competing applications and an extended court battle is a very real possibility. But beware, if the relationship ends – revoking the power of attorney is essential.

A revocable living trust is by far more able to withstand challenges launched by family members than a will since the trust terms are private and probate matters are not only public, but the judge is a decision maker who may or may not see things the way the incapacitated person did. The non-traditional partner is not even entitled to notice of a guardianship proceeding. 

Non-traditional couples often form the same economic unit as traditional couples; they share leases or mortgages; pay utilities and groceries together; and raise children together. But as far as law is concerned, they are “strangers”, i.e., there is no or limited law governing non-traditional partnerships. 

When property and child relationships are involved, unraveling a defacto domestic relationship is like unraveling the Gordian Knot. Contracts between partners become important.