Pro Bono Publico
Matthew Laurel Trinidad
Glenwood Springs, Colorado CO

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February 11, 2013
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Domestic partners may pay a high price for a failure to plan

Unmarried same sex and opposite sex couples are legal strangers. Some unmarried couples understand and accept the consequences of this legal reality. Others, if they understood the consequences, might wish to confer upon each other additional rights and protections.

A failure to do so can be disastrous. A partner who becomes incapacitated or dies may unintentionally leave the other on the outside looking in, abruptly cut off from the person and estate of his or her significant other. In some particularly awful cases, a surviving partner may face eviction or other claims by the deceased partner's next of kin. To prevent this from happening, unmarried couples who would intend otherwise must plan accordingly.

The circumstances under which unmarried couples should consider formal planning are varied, but here are a few considerations that make formal planning advisable: (i) comingled property; (ii) a partner foregoes financial or professional opportunity or incurs significant costs for the sake of the partnership, (iii) the partners form an expectation that one will support the other financially; (iv) adoption of or co-parenting a child; or (v) poor relations between one partner and the other partner's family.

Marriage is a legal estate that creates a broad array of rights and protections. It is an otherwise obvious way for unmarried couples to address these concerns, assuming that the default rules under marriage are appropriate to the relationship. But in Colorado, only opposite sex couples may marry.

The Colorado legislature is expected to enact a law authorizing civil unions, which will give same-sex couples many of the rights and protections of marriage. Yet civil unions, if enacted, will not be universally recognized and will therefore remain at best an incomplete solution. Parties to a civil union may find it difficult to "divorce" in another state, for example, or benefit from protections under federal law such as the unlimited estate tax "marital" deduction applicable to transfers between spouses.

As an alternative to marriage or a civil union, unmarried couples in Colorado may enter into a designated beneficiary agreement (DBA), which may be used to confer certain rights and protections. Unfortunately, a DBA is also not a complete solution. The rights and privileges addressed by a DBA are limited and may not be enforceable in other states. A DBA may be revoked unilaterally with very little procedure or unintentionally superseded by a pre-existing will, trust or power of attorney.

Given the limitations of the foregoing options, unmarried couples should make comprehensive estate plans with the aid of a qualified professional. A basic plan typically includes a will and powers of attorney for personal and financial matters, but unmarried couples may need to make other arrangements, including a DBA, nonmarriage, co-habitation, or domestic partnership agreement, co-parenting agreement, or a second-parent adoption.

The laws of the states and the federal government generally do a good job of approximating the wishes and intentions of persons engaged in prototypical relationships. Unless and until the laws of all of these jurisdictions address matters pertaining to persons engaged in less-typical (yet increasingly common) relationships, the parties to these relationships must make their own legal arrangements to ensure that their wishes and intentions are carried out.

Matthew Laurel Trinidad is a transactional attorney at Karp Neu Hanlon PC. His practice emphasizes business law, estate planning and probate. Contact him at mlt@mountainlawfirm.com, (970) 945-2261, or visit www.mountainlawfirm.com.


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The Post Independent Updated Feb 11, 2013 01:37AM Published Feb 11, 2013 01:34AM Copyright 2013 The Post Independent. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.