Four weeks ago Elder Law Issues described some of the legal problems facing same-gender couples. In most states even a committed couple is unable to marry, and a number of automatic protections and legal arrangements follow the institution of marriage. We described some of the important steps a same-gender couple might take to replicate at least some of the benefits of a marriage.

Several readers pointed out that most of the same provisions apply to heterosexual couples who—for whatever reason—have not gotten married. Our readers tend to be very astute, and we had every intention of making the point in a later article. It is now later.

That earlier article was actually from guest author Wendy Sheinberg, a well-known New York elder law practitioner and our friend. She made the point that durable powers of attorney, health care directives and other traditional planning devices for end-of-life issues are even more important for same-sex couples. The same is true for unmarried heterosexual couples, and for the same reasons.

The law usually assumes that spouses will have priority for decision-making—both financial and personal. When there is no spouse, most states’ laws presume that parents, or children, or other family members, will step up to the highest priority. State laws may differ as to whether that authority is automatic or requires court involvement. Automatic authority is far more common in health and personal care decisions than in financial matters, but even if court action (for example, a guardianship or conservatorship proceeding) is required, most states give spouses and then other family members priority for appointment.

Unmarried partners are seldom given any mention in statutory priority lists at all, much less higher priority than relatives. If unmarried partners want to give one another that higher priority, it is critically important that they execute proper advance directives, powers of attorney and possibly other documents, depending on their circumstances and wishes.

As with same-sex couples, unmarried heterosexual couples are unable to rely on automatic inheritance benefits provided to spouses. That means wills, trusts and beneficiary designations must be much more carefully considered, reviewed and prepared for unmarried partners, regardless of sexual orientation.

Wendy Sheinberg’s earlier article made the excellent point—applicable to heterosexual couples as well as same-sex couples—that the most important issues are sometimes not about money. Unmarried couples should seriously consider signing hospital visitation and burial authorization documents in order to minimize friction in times of crisis.

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