Question: I have been in a same-sex relationship with the same person for 26 years. In June we were legally married, in Massachusetts. Three years ago made out our last will and testament, health care proxies and powers of attorney. We each left our entire estate to whoever survives. Our home here in Massachusetts has a deed of “joint tenants with right of survivor ship” so I am not worried about this home. However, my partner recently inherited his parent’s home in Portugal. I was wondering if our wills and our legal marriage here would automatically mean that I would inherit the home in Portugal should he die before me.
Answer: Fortunately, your estate planning desires are accomplished through your partner’s will. Given the tenuous legal future of same sex marriage in America and in Massachusetts, you should not merely rely upon your marital status.
Should the law allowing same sex marriage be reversed, couples may lose the preferred marital status under the intestacy statute. This statute governs the distribution of property when people die without a will. Having a will eliminates this concern completely and provides piece of mind.
Any property, real estate or otherwise, acquired by either your partner or you will be passed along according to your wills. For example, the Portugal property is currently held in your partner’s individual name, but upon his passing, it will follow the rules of his will, giving you ownership rights. Of course, proper filings may be needed in Portugal to formalize the process, so please consult a Portuguese based attorney.
Your Massachusetts real estate is held jointly thereby giving you both rights of survivor ship. This is the quickest and most efficient method of transferring title upon either of your deaths. You may also want to consider transferring the Portugal property to both of you, jointly.