Following the Supreme Court case, United States v. Windsor, the government was required to treat married couples equally, regardless of whether they were a same sex couple or a heterosexual couple. Accordingly, there is generally no need to have specialized estate plans for LGBTQ community or same sex couples who are married. However, we strongly recommend utilizing basic estate planning strategies. Basic estate planning strategies include creating a:
- Financial Power of Attorney
- Medical Power of Attorney
- Advanced Health Care Directive, and
- Revocable Living Trust.
Are Estate Planning Documents Even Required for Same Sex Couples Anymore?
You may ask, are estate planning documents even necessary since same-sex marriage is legal now? After all, states are supposed to recognize legality of the union. Even if a spouse dies without a Will, the survivor is legally entitled to inherit. While this is theoretically true, there are still a number of states where many of the people in charge are not happy about recognizing same sex marriages. Moreover, just because you are married it does not mean the surviving spouse inherits everything. Many states require part of the money be distributed to children or parents in addition to the spouse. Accordingly, we still think it is very important for LGBTQ couples to prepare proper estate planning documents.
Estate Planning for Married Couples and Unmarried Couples is Different
Estate planning for couples who are not married is quite tricky, regardless of whether you are in a same-sex relationship or not. For anyone who wants to provide for a loved one that they are not legally related to, it is imperative to prepare the proper estate planning paperwork. Without the proper estate planning documents, your loved one will not inherit. Additionally, they will have no ability to act as an agent for making financial or health care decisions. Moreover, in many states, leaving money to a legal stranger can cause an inheritance tax.
Avoiding Probate Can Be a Good Idea
In many communities it is a good idea to create a plan that avoids the probate process completely. Avoiding probate can save time and expenses for your loved one. Additionally, it can keep your affairs private. If you concerned about ease of administration or keeping things private, we strongly suggest you consider setting up a revocable living trust.
Additional Planning is Necessary When Children are Involved
Trust and tax planning becomes even more important if there are children involved. If one partner dies without a Will in some states, the state intestacy law may not protect the surviving partner. Additionally, in many states, the partner will have no rights to administer their loved one’s estate or act as a guardian if you are not legally related.
Ignoring the issue not only leads to litigation, but a more expensive estate administration process and higher taxes. If you are a LGBTQ person, it is very important to speak with a competent estate planning attorney in a jurisdiction near you to flush out all the issues that affect you.