Jul 1, 2010 12:00 PM

, By Joshua S. Rubenstein

As long as federal laws discriminate against all couples, loopholes exist for estate planners to discriminate back

By Joshua S. Rubenstein

Unmarried partners don't enjoy the protections and benefits that are unique to marriage. For example, unmarried partners aren't entitled to an intestate share and don't have the statutory right to demand an elective share, as spouses do. Unmarried partners can hold property as joint tenants with rights of survivorship, but they can't hold property as tenants-by-the-entirety. State laws don't recognize oral agreements and understandings between unmarried partners. Moreover, the Employee Retirement Income Security Act (ERISA) requires a spouse to be the beneficiary of at least 50 percent of the other spouse's retirement benefits (unless the spouse consents to a different arrangement), but provides no such protection to unmarried partners.

In some instances, however, unmarried partners may benefit from legal loopholes that have been closed to married partners. For example, they can buy back a residence in a qualified personal residence trust (QPRT) to get a stepped-up basis and can take advantage of the old common law grantor retained income trusts (GRITs) that Internal Revenue Code Chapter 14 outlawed for family members.