Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, “Monday Morning Marriage Memo,” as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant.
NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website.
According to LexisNexis, approximately 55 percent of American adults do not have a will or other estate plan (such as a trust) in place. Among minorities, the numbers are higher: 68 percent of Black adults and 74 percent of Hispanic adults do not have one.
For same sex couples who are not married, or in registered domestic partnerships, this can be very dangerous.
Note: I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of this memo. However, I hope this memo will help you ask the right questions of people who are qualified in these issues.
If someone in California dies without a will or a trust, his or estate is distributed according to California’s Law of Intestate Succession, as found in Sections 6400-6414 of the California Probate Code.
A lesbian or gay couple could have been living together for decades, but, if one of them dies and has left no will or other estate plan, and if they were not married or registered domestic partners, then the law considers them legal strangers. The survivor has no right to inherit any part of the deceased’s estate. If the deceased had owned their home the survivor wouldn’t even have a place to live.
Even if they were married or registered domestic partners, without a will or trust, the survivor might have to share the estate with other family members of the deceased. It would not matter that the couple may have agreed that each of them wanted their soul mate to have everything when one of them died.
Here are the details.
First we need to understand some concepts. These are the concepts of “community property, ” “quasi-community property” and separate property.
Under California law all earnings of married couples, during their marriage, are community property. They each own all of it. The same is true of registered domestic partners. Any property bought with those earnings is also community property.
Earnings that were earned prior to their marriage are separate property. For example, suppose John retired before they married and he is getting a pension from his former employer. His monthly retirement check is his separate property. He earned that pension prior to their marriage,
Property bought by one of them, prior to their marriage is separate property, and remains so during their marriage. If John kept his pension money separate (say in a separate bank account for himself) property bought with that money would be his separate property. Otherwise, property bought during their marriage, with community property earnings is also community property.
Quasi-Community Property is property acquired by a married person or couple in a non-community property state that would have been community property if it had been acquired in a community property state. California is a community property state. So, if a couple here bought a vacation home in Oregon, it would be considered quasi-community property in California.
Under California’s law of intestate succession, if a lesbian or gay couple never married or registered as domestic partners, and one of them dies without a will or other estate planning tool (such as a trust), the survivor gets none of the deceased person’s estate.
Even if they were married, but one died without a will, California law treats the three types of property in different ways.
The surviving spouse gets the half of the deceased’s part of their community property.
Again, with quasi-community property, the survivor gets the half of the decedent’s share of their quasi-community property.
But with separate property of the deceased, the surviving spouse or registered domestic partner gets all of it only if the deceased left no children, parents, brothers, sisters or children of those brothers and sisters. Depending on which of those relatives survives the deceased spouse, the surviving spouse could inherit as little as one third of the separate property of the deceased.
So it is very important for even married couples, or registered domestic partners, to have either a will or some other estate planning tool so that there estate will go where they want it to go.
One final point. Property that is passed to survivors through a will must go through probate court. That court process can take a long time and it can be expensive. Property passed through a trust does not go through probate. So, depending on the size of the estate, it might be preferable to use a trust rather than a will.
Setting up trusts can be expensive too. So some say using this estate planning tool is only advisable if the estate is worth $100,000 or more.