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Estate Planning Opportunities for Same-Sex Couples

Published May 30, 2019 by Brady Cobin Law Group, PLLC
Same-Sex Couples Need Estate Planning, Too

Since same-sex marriage became legal throughout the United States in 2015 with the Supreme Court’s decision in Obergefell v. Hodge, many same-sex couples have realized that they can benefit from estate planning. Making decisions about the disposition of your accumulated wealth and property, providing power of attorney for critical decisions, and stating end-of-life health care wishes are signs of a couple’s care and devotion to one another.

Same-sex couples have access to all of the legal tools traditional couples have used for years to protect their property and themselves in their later years. This makes it a mistake to put off questions that could require an immediate answer without notice. Accidents happen and illnesses strike without warning.

The attorneys of Brady Cobin Law Group, PLLC would be happy to talk to you about estate planning for married gay couples, as well as for same-sex couples living together, and how we may assist. For more than 35 years, our dedicated Raleigh, N.C., estate planning lawyers have helped couples throughout North Carolina plan for their futures and take the steps to provide for those they love.

The Importance of LBGTQA Estate Planning in North Carolina

Everyone needs to plan for the future. Estate planning is a means of making sure everything you own — your car, home, other real estate, checking and savings accounts, investments, life insurance, personal possessions — is passed on to the people or organizations that you designate after you die. A proper estate plan states how you want to be cared for if you cannot say so yourself and who may make health care decisions and financial decisions for you. Estate planning ensures that your wishes are carried out.

Unfortunately, the civil rights of LBGTQA Americans remain a focus of political debate and the law is still evolving in this area.

We believe that, for married gay couples, completing your estate planning documents is the best way to protect yourselves in North Carolina. It is also important to recognize that estate planning must be revisited periodically, especially if there are significant changes in your life, such as the addition of children to your family.

Marital Status and Gay Couples

The history of gay marriage in the United States may have contributed to an unexpected obstacle for same-sex couples drafting wills, powers of attorney and other estate planning documents. Some gay Americans may be married to a prior partner and not realize it.

Massachusetts was the first state to legalize gay marriage in 2003. When the June 26, 2015 Supreme Court ruling was handed down, same-sex marriage was legal in 37 states, including in North Carolina via a 2014 court decision. Prior to 2015, state laws could change abruptly, such as in California, where same-sex marriage was made legal on May 15, 2008 and banned on November 4 of the same year.

Over the years, some gay couples who married in one state found themselves relocated to a state that did not recognize their marriage. If they split up in a state that did not recognize them as married and therefore never legally dissolved their marriage, they would still be married, Joan M. Burda, author of “Estate Planning for Same-Sex Couples,” suggested in a 2017 interview. Some states converted registered domestic partnerships or civil unions into legal marriages.

If you have questions about your marital status, we can advise you about the necessary work to affirm or confirm your current status in preparation for estate planning.

3 Estate Planning Must-Haves for Same-Sex Couples in NC

The estate planning needs of same-sex couples are no different from other married couples’ needs.

Here are three estate planning documents you both should have and that we can help you prepare:

  • Wills – A will states how your assets should be divided upon your death and who receives what. A will allows your estate to avoid many of the costs of probate court. If each of you have wills, you can designate who you would want to be guardians for your children.
  • Advance Directives – A health care directive (or advance directive, or living will) explains what you want to happen to you if you become incapacitated by illness or injury and cannot speak for yourself. You can state whether you are or are not to be kept alive on a feeding tube, placed on a mechanical ventilator, or undergo other life-prolonging, extraordinary measures to extend your life.
  • Power of Attorney – A power of attorney is a legal document that grants someone else the authority to make decisions on your behalf. It is very flexible. You can specify what powers a person has and under what circumstances he or she can exercise that power. A financial power of attorney grants authority over investments and spending. A health care power of attorney designates a surrogate to make medical care decisions on your behalf. For estate planning purposes, a durable power of attorney ensures that your designee continues to have power of attorney even when you are not able to communicate, such as because of incapacitating illness or injury. In other cases, a power of attorney might grant certain authority during an extended absence, such as a military deployment.

Establishing a Trust

Another approach to managing assets that are to be passed on to a beneficiary is to establish a living trust. A trust can be tailored to meet your needs and the needs of the beneficiary(s) you name while providing tax and probate benefits to you and your beneficiaries.

There may be additional issues that we can help you make plans for, such as the disposition of a small business that one or both of you owns, or tax considerations attached to retirement account assets.

But the immediate objective of estate planning for same-sex couples in North Carolina is to legally document your wishes and protect your assets. The same-sex estate planning lawyers of the Brady Cobin Law Group are here in Raleigh, N.C., to help you plan for the security of your family’s future. Contact us today to discuss your estate plan.

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