5th Oct 2017

Now that same sex marriage is legal in the US, same sex couples are supposed to have the same rights when it comes to estate planning as heterosexual couples. This includes matters such as writing a last will and testament and creating a trust. However, it is important to know the legal ramifications and guidelines that apply to same sex couples. The following article is a guide to help those in same sex relationships.

The key factor to successful estate planning for same sex couples is to start planning as early as possible. This means setting up a meeting with your layers as soon as possible and get everything in order in a timely fashion. And for those same sex couples who do not choose to wed, it is important to have a plan set in place as these couples will not have the same rights as married couples. Therefore, proper estate planning is essential for same sex couples regardless if they are married or chose to retain their single status.

However, it is important to keep in mind that federal law takes precedence over state law. This means that if you are living in a state that does not support gay rights, you would be covered under federal guidelines. Following are some of the guidelines that states must follow now that same sex marriage is legal in the United States.

  1. Those states that enforce state tax are now required to extend the marital deduction for taxes to same sex spouses.
  2. Same sex couples are now allowed to file joint returns for their state income taxes.
  3. States are now required to extend surprised rights or life insurance plans, financial accounts, retirement plans and so forth for same sex couples.
  4. Should one partner become disabled or incapacitated, the surviving spouse will now be recognized as their power of attorney or medical decision maker. This also applies if one partner dies. The remaining partner is then in charge when it comes to making decisions as how to disburse the deceased’s parties assets and properties.

However, unless both partners have a legal and binding estate plan in place, there is a higher chance for probate. In order to protect the assets and property, you and your same sex spouse should have a will and/or trust in place. Also, you should designate your same sex partner as your Power of Attorney and beneficiary on any and all legal documents including bank accounts, insurance policies and pension plans.

Following are some other key components that same sex couples need to keep in mind when it comes to estate planning.

  1. Be Certain of Your Legal Marital Status

Same Sex marriage was legalized nationwide in 2015. However, as same sex marriage was only legal until that time in certain states, some couples only had a civil ceremony, so their marriage may not be officially recognized. By the same token, if the couple has then split up, they may still be considered legally married, as same sex divorce was not previously recognized before 2015. Therefore, it is imperative that you are sure that you and your current spouse are in fact legally married. You need to also ensure that any previous relationship is legally dissolved, as this could be cause for legal disputes later down the line. If a prior relationship is not legally dissolved, the former partner may insist that you are still legally wed and may try to contend the current will.

  1. Have More than Just a Standard Will as Part of Your Estate Plan

A last will and testament is crucial when it comes to estate planning however, especially in the event of same sex marriages, it is wise to also determine a durable power of attorney. In addition, it is also a good idea to appoint a living trust as well. A trust is harder to content and will not be liable for probate as would a will.

  1. Plan for Your Medical Needs

In addition to power of attorney, you should designate your same sex partner as your health care proxy (or health care surrogate). Essentially these are interchangeable terms for medical power of attorney. This way your spouse will be able to speak to your doctors and make any emergency medical decisions such as life surviving surgery or procedures. As well, you should consider a DNR (Do Not Resuscitate), a living will or other health plan derivatives which specifically outline your preferences for your medical care should you Become incapacitated.

  1. Plan for your dependents

In same sex marriages, it is a suggested that the non-legal guardian or non-biological parent of any offspring should legally adopt the other partner’s children. This would protect the children in the event that one parent dies or becomes incapacitated. This prohibits other family members from claiming that the children were not legally part of the family and therefore are not entitled to any assets or property that are left behind.

  1. Ensure that You Have All of the Proper Documentation Up to Date

When it comes to same sex marriages, it is imperative that both parties have all legal documentation up to date. Both parties should have a current estate plan. Make sure that your partner’s full name, date of birth, social security number and other pertinent information is on any and all legal documents. This includes and is not limited to your will, any trusts and bonds, retirement and pension plans, financial accounts, life insurance policies and any other legal documentation. This will save a great deal of time and hassle in the long run.

Should you have any questions regarding estate planning for same sex couples, please contact us at Tompkins Law at 1-714-385-0044. Our staff is experienced in these matters and will assist you with any concerns you may have. Call us today for a free and confidential consultation for all of our state planning needs!



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