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Same-Sex Couple Estate-Planning Issues: What if You Get Sick?

March 1, 2018

After winning the right to marry in 2015, many same-sex couples gained rights previously only available to married couples of the opposite sex. Tax breaks, health insurance and many other benefits of marriage made life easier for numerous couples overnight.

However, many same-sex couples make the mistake of assuming that just because they are married that their spouses automatically have the right to make health care decisions on their behalf should they not be able to at some point in time. This may not always be the case, and it may be a good idea to prepare for that possibility.

Preparing for Illness or Injury

If you want your spouse to be the one to make health care decisions for you in the event of an illness or injury that prevents you from making them on your own, you may want to consider executing the following documents to ensure that happens:

  • A living will: This document makes known your wishes for end-of-life care. For instance, if you don’t want certain treatments or resuscitation under certain circumstances, you could express those wishes in this document. Your doctors and health care proxy can refer to this document to understand what you do and don’t want when it comes to your medical care.

  • A health care proxy: This person, your spouse, becomes responsible for making health care decisions for you when you can’t. More than likely, your husband or wife will make the same choices you would make since he or she probably knows you better than anyone else does.

  • A power of attorney for finances: This may not seem like a document your spouse would need, but if you have separate assets to which your spouse does not ordinarily have access, you may want to execute this document.

Depending on your circumstances, these documents could prove invaluable if you become incapacitated. Other family members may attempt to step in and make decisions for you without deferring to your spouse. They may even attempt to have a New York court appoint one of them to take over the decision-making instead of your spouse. Having these documents in place would prevent that.

Preparing the Appropriate Documents

In order to make sure that your spouse can act on your behalf without interference when you cannot make decisions for yourself, it may be worth your while to enlist the advice and assistance of an experienced estate-planning attorney.