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Special Challenges Remain for Some Same-Sex Couples

Published July 6, 2017 by Brady Cobin Law Group, PLLC

The winding road that led to legalization of same-sex marriage included states that permitted the marriages, some that did not and the right to marry nationwide. Along the way, some situations were created that have put some couples’ legal status in a potentially problematic situation.

Every couple needs to have an estate plan to ensure that their spouse or partner can make decisions on their behalf, if they become incapacitated and to distribute their assets according to their wishes, says an article in the Palm Beach Post, “Estate Planning 101 for Same-Sex Couples.” But for same-sex couples, there are a few extra steps that need to be clarified to ensure the integrity of their estate plan.

  • What’s your marital status? The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges legalized same-sex marriage throughout the nation. However, the mishmash of prior state laws has had some unintended consequences in estate planning. Assets typically pass to a spouse upon death, so it’s critical to know that past relationships have been dissolved. Prior to 2015, some same-sex couples were married in states that recognized their marriages, then moved to states that didn’t recognize those marriages and then subsequently ended their relationships. Believing that their nuptials “didn’t count” in the non-legal states, some couples split up but didn’t legally dissolve their marriages. Some states have automatically converted registered domestic partnerships or civil unions into legal marriages. As a result, there are people who are married and don’t know it.
  • What you need besides a will. A will is critical for couples with children from previous relationships or those who had children before legally marrying. If you don’t have a will, it can be unclear where assets should go when the last partner dies. In addition, same-sex couples should sign a power of attorney to give a spouse or someone else the power to act on your behalf in certain situations. Creating a trust can also be an excellent idea, especially if there are concerns about fighting over your assets when you die. A trust is established during your lifetime. Couples can place assets into the trust—when one dies, there’s less of an opportunity to contest it, because trusts don’t go through probate.
  • Consider your medical needs. Same-sex couples need to document their wishes, and there are several options. Two of the most popular are a health care proxy or a power of attorney for medical treatment. This lets a person of your choosing make medical decisions for you, if you’re incapacitated and can allow physicians to share your medical information with those you name in the document. A living will—or a do-not-resuscitate (DNR) or other kind of health directive—also states your preferences for medical treatment when you can’t communicate.
  • What about your kids? When parents die, their assets typically pass to their children. However, to be certain that your property goes to your kids, same-sex parents may want to make adoption part of their estate planning. Frequently, just one parent is biologically related to the child. Some states have second-parent adoption, otherwise known as a step-parent adoption or a confirmation adoption. This process confirms that the children are related to everybody.
  • Do-it-yourself doesn’t work here. Online legal services usually don’t account for the special situations that same-sex couples face. An LGBT couple’s estate planning needs may be slightly more complicated, and they will be better protected by working with an estate planning attorney who is familiar with the particular issues of same-sex couples.

Reference: Palm Beach Post (June 7, 2017) “Estate Planning 101 for Same-Sex Couples”

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