Estate Planning Considerations for Same Sex Couples

Rainbow colored celebrations across the country signaled the news last week that same-sex marriage was signed into law in the state of New York. But with all the revelry, there is also seriousness. Legal marriage brings about changes that require planning in many areas of life, including estate planning.

In all aspects of a plan, make sure to seek advice from an experienced estate planning attorney licensed to practice in your state. Plus there are a few things for same-sex couples to keep in mind.

State Law & Federal Law

Federal law does not recognize same-sex marriage. State laws vary widely and most states do not allow same-sex marriage. The National Conference of State Legislatures keeps an updated list on its website.

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia issue marriage licenses to same-sex couples. California does not currently allow same-sex marriages to be performed, but marriages that took place before Proposition 8 was passed remain valid. Rhode Island, New York, and Maryland recognize same-sex marriages from other states.

In An Emergency

If you’re taking a trip out of state, decide to move out of state, or even are at a medical facility near where you live, your spouse could have difficulty obtaining information about your medical condition and even having access to see you in an emergency.

The HIPAA Privacy Rule provides federal protections for personal health information. The U.S. Department of Health & Human Services website has information available for consumers. While it may not be required by law, having a written document signed by each spouse giving health care providers permission to release medical information to each of you could make things easier.

Once you’ve obtained medical information about your spouse, you need legal authority to speak on their behalf and have medical providers act accordingly. A living will says in writing how a person wants to be treated under certain medical conditions. Whether or not they would want to stay on life support and possibly if they would want to donate their organs upon their death. A health care proxy gives a person written permission to act on another’s behalf in terms of their health care and possibly making end of life decisions.

The Basics

A key element in an estate plan includes having a written will, which lets you determine in advance how your property will be distributed after your death. While not legal advice, the American Bar Association has some good estate planning information on its website.

If you die without a will, your state’s laws will apply by default and the outcome may not be what you would want. Sometimes the creation of a trust can go further in making sure that the provisions of your will are carried out as you envisioned.

Be aware that certain assets may fall outside of what is covered under a will. Life insurance policies, employee benefit plans, bank accounts, and stocks may have a designated beneficiary. Regardless of what is stated in the will, those assets should automatically pass to the beneficiary named in the documents when they were purchased or revised at a later time.

Similarly, real estate owned as joint tenants with rights of survivorship should automatically pass to the surviving joint tenant. Have you updated these documents to include your spouse? And even though this property may pass outside of the probate estate, it may still be part of the taxable estate.

By: Lisa C. Johnson, Esq.


About AfterSteps

AfterSteps is an online end-of-life planning platform with educational resources and tools to create your plan, store it, and transfer it to your designated beneficiaries.
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