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Important Kansas Estate Planning Issues for Same Sex Couples

Weber Law Aug. 30, 2014

While people of all sexual orientations can benefit from estate planning, unmarried gay and lesbian couples have a greater need for estate planning than married heterosexual couples.  The recent trend in a growing number of states has resulted in the legalization of same gender marriages.  However, the law regarding same sex marriage remains in flux in Kansas, so it is important to consider some estate planning steps if you are not married but involved in a committed gay or lesbian relationship in Kansas.

Health Care Directives

Health care directives can take two forms: (1) a health care power of attorney or (2) a living will.  A health care power of attorney appoints a person to act in your place in making medical decisions if you are incapacitated and unable to make such decisions.  A living will indicates your preferences regarding extraordinary life sustaining measures if you are incapacitated.  A living will provides guidance to health care providers regarding your desires regarding tubal hydration and nutrition, resuscitation and other extraordinary life prolonging measures.

If you are not legally married to a same sex partner, your family members will be asked to make decisions about your care and treatment if you are incapacitated by illness or injury.  A life partner will not have input on these decisions and might even be excluded from your hospital room.  A health care power of attorney can appoint your life partner as your proxy to make health care decisions if this is consistent with your preferences.

Probate Avoidance Strategies

If you are not involved in a lawful same sex marriage, your partner will have no right to inherit your property in the event that you pass away without creating an estate plan.  When a person dies without a will, living trust or other estate planning preparations, his or her property will pass to family members under state intestacy law.  A living trust can be set up that names your partner as the beneficiary of your trust, so property placed in the trust passes to your partner.

There are other estate planning strategies that might be effective in facilitating the transfer of assets in your estate to your partner.  If you hold your home or vehicle in joint ownership with right of survivorship, your partner will become the owner of the assets titled in the names of both you and your partner.  Transfer-on-death accounts and other assets like life insurance with a designated beneficiary also can be transferred to a partner by listing the partner as a beneficiary.


A will is another method of facilitating inheritance by a same sex partner.  While a will can be used like a living trust to override state intestacy law, it can also be used to nominate a guardian for your children and manage assets to be inherited by your children.  Like a living trust, wills prevent the unintended result of your partner being denied any inheritance of your property.

If you have questions about estate planning for same sex couples, we welcome the opportunity to talk to you and answer your questions.  We invite you to call us or submit an inquiry form through this website to schedule your initial consultation.