Ask Money

How to assure ownership

Chris Farrell Jun 25, 2010

Question: My partner and I own a home together, and are unable to marry in our state. I read that even if you title your home as joint tenancy with right of survivorship (which we have), that in the event of a death, if the surviving partner cannot prove a 50% contribution to the value of the home, the entire value of the home is included when calculating the estate tax. We share a joint account, and take equal shares of the mortgage interest deduction. How can we each prove a 50% contribution? We share a common life and all expenses, so separate checking accounts seem like a real burden. Adam, Norfolk, VA

Answer: Gay couples face a number of financial planning challenges, especially since state laws vary greatly.

I think you should be okay. But to deal with situations like yours and avoid any controversy one common tactic is to set up trusts. Gay couples typically rely on trusts more than conventional couples do. There aren’t real tax advantages from the maneuver. It’s a legal device that better protects the partner’s wishes–and that’s key. I wrote a story for Bloomberg BusinessWeek, Beyond Ozzie and Harriet: Clearing some of the financial hurdles facing nontraditional families, that touches on the issue:

For peace of mind I would work with an estate attorney or professional financial planner that specializes in working with gay couples. You may be fine with the way you have your money set up, but just in case it would be good to ask a professional. It won’t be cheap, but getting everything set up right is important. Before you go, one of the best resources for doing some research on your own is published by Nolo.com. For instance, the book A Legal Guide for Lesbian & Gay Couplesby: Attorney Denis Clifford, Attorney Frederick Hertz, and Attorney Emily Doskow covers a lot of issues.

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