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Prior to the Supreme Court’s overturning of the Defense of Marriage Act (DOMA), in many states, a same-sex couple was treated as two independent persons for tax purposes and estate planning laws.  The Supreme Court’s decision now means that legally married same-sex couples are now entitled to the same federal benefits as married heterosexual couples.

Even though same-sex couples have some unique concerns relative to estate planning, with the recent Supreme Court ruling, the issues that now face same-sex couples are similar in nature to heterosexual couples in many facets.  It is important that same-sex couples seek the advice of qualified attorneys in their estate planning.

One of the primary issues facing both same-sex and heterosexual couples, is that the laws affecting property rights change on a state to state basis and, additionally, the same holds true when it comes to state taxes.  Questions involving federal taxes may further complicate an estate administration.  Therefore it is important for same-sex to utilize the assistance of an estate planning attorney to navigate these waters.

Previously, many same-sex couples had either consciously, or perhaps unconsciously, not chosen to pursue even simple estate planning documents.  However, now that same-sex couples will fall under the auspice of the same laws as heterosexual couples in their respective states, it is important that they take the time to, at the very least, execute simple estate planning documents.

These simple estate planning documents may include a Last Will & Testament, Durable Financial Power of Attorney, Health Care Power of Attorney, Living Will, and final arrangements.

Wills and Powers of Attorney

A “Durable Power of Attorney” enables you to designate someone to handle your finances if you are seriously injured or disabled.  A Durable Power of Attorney for Health Care is an instrument allows someone to make medical decisions for you in the same circumstances.  A Living Will instructs your family and physician as to your wishes if you are terminally ill or comatose and unable to make your own end of life decisions.  A Last Will & Testament appoints an executor to manage your estate, a guardian to “attempt” to manage your minor children, and outlines the general distribution plans of your assets.

All persons who are over the age of 18 should have a Will, Durable Financial Power of Attorney, Durable Power of Attorney for Health Care and Living Will.

Probate Avoidance

Probate is the legal process to finalize an estate which, at times, can prove to be a lengthy and expensive process.  Typically, the most advantageous way to avoid most probate issues, therefore sparing your estate and its beneficiaries time and expense, is to focus on probate avoidance within the estate plan.

Avoiding probate will no longer be as complicated for same-sex couples because they can now take advantage of laws that allow property to pass to spouses without probate.  Probate avoidance can be done by the utilization of such estate planning mechanisms like trusts, transfers-on-death, deeds, and joint ownership.

Questions to Consider

Same-sex couples need to ask themselves some relatively hard questions:  What do we want to happen to the real estate that is either owned jointly or separately?  How can we benefit from federal tax laws for married couples?  What coverage do we need on our insurance policies and what do we do about beneficiaries?  How are we going to handle our retirement assets and what will be provided to our same-sex partner at death?  If you have children, how will you provide for them at your death?

Conclusion

Estate planning, at its very core, is about the important decisions of who will receive the lifetime of assets you have accumulated at your death.  It is virtually impossible for a surviving spouse or partner, whether or not they are from a same-sex or heterosexual couple, to make an estate plan after his or her partner or spouse has died.  These important decisions need to be made by individuals when they are alive and competent to ensure that their wishes are accurately detailed and carried out.

Same- sex couples should not wrongly assume that now that laws have changed, they can simply allow the laws of their respective state to take care of their estate planning for them.  Whether or not a same-sex couple is legally married, in a domestic partnership, or a civil union, estate planning documents are essential to preserving the intentions of the couple and the longevity of the surviving partner or spouse.  Whether or not you are a same-sex or heterosexual couple, or even an individual whom is not in a legally-binding marriage, it is important that you take advantage of the legal protections available to you.

Keeping you informed are the trusted attorneys from Browning & Meyer Co., LPA. Please contact our law office with any questions about estate planning for same-sex couples.