Following the recent Supreme Court case, United States v. Windsor, which requires that the IRS treat couples in a same sex marriage no differently than couples in a heterosexual marriage, there is now usually no need to have specialized estate plans for same sex couples. Basic estate planning strategies include creating a Will, Financial Power of Attorney, Medical Power of Attorney and Advanced Health Care Directive.
However, because there are still a number of states which do not recognize same sex marriages, it is imperative for gay and lesbian couples to prepare proper estate planning documents. Additionally, trust and tax planning becomes even more important as does coordination of the couple’s other assets. This is particularly true if there are children involved. If one partner dies without a Will in those states, the state intestacy law will 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.
Ignoring the issue not only leads to litigation, but a more expensive estate administration process and higher taxes. If you are in a same-sex relationship, 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.