Same-Sex Couples: Three Estate Planning Steps to Take Now

June 2, 2015
Updated on November 17, 2020

In 2015, the Supreme Court ruled in the monumental case of Obergefell v. Hodges that the fundamental right to marry applies to same-sex couples. The ruling required all fifty states not only to recognize same-sex marriages legally performed in other states but also to allow same-sex couples to marry on the same terms and conditions as opposite-sex couples. The ruling also required that states give the same rights and benefits to same-sex couples as they do to opposite-sex couples.

Consequently, the estate planning needs of same-sex couples are not much different from those of opposite-sex couples. However, if children are involved, you may need to take some extra steps to protect your family. In order to ensure that assets are distributed as intended if one spouse becomes incapacitated or passes on, couples should take the following steps.

Put it in writing. If a couple does not legally document their wishes, then the default rules of the state apply. For example, when someone passes on without a will, the state will divide assets among spouses or children according to preset percentages, which may not match the deceased’s wishes. For example, if Jose and Pedro are married, and Jose has a separate minor child whom Pedro has not adopted, in most states Jose must provide for Jose’s minor child and cannot leave everything to Pedro when Jose passes on.

Consider a trust. A revocable living trust offers the ability to manage and distribute assets in the trust without having to go through probate. If a trust is not used and the person becomes incapacitated, a judge might appoint a relative—or if there are no living relatives, a stranger—to serve as guardian to make health or asset distribution decisions for the incapacitated person. If the person passes on, the court will appoint an administrator to manage the person’s probate estate.

Establish rights. Cash, investment accounts, and real estate assets should be put into joint ownership so they can pass automatically to the surviving joint owner. Additionally, if a couple has children but only one partner is a biological parent, the other parent should seek to legally adopt the child to establish parental rights and receive custody of the child if the other partner becomes incapacitated or passes on.

Estate planning is important for all couples, including same-sex couples. It is crucial for both same-sex and opposite-sex couples to create detailed, binding estate plans to ensure that their wishes are carried out. Same-sex couples joined by a domestic partnership or a civil union rather than a traditional marriage should consult with an estate planning attorney to ensure that they have the same rights and privileges as individuals in a legally recognized marriage.

Living Trust, Same Sex Couples, Will, Probate, Estate Planning
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