Estate Planning for Same-Sex Couples

Estate Planning for LGBT couples

Estate planning for “non-traditional” families is a very relevant topic and one that I do not think gets enough attention.  Same-sex couples have the same estate planning needs as do opposite-sex couples – probably more so, than opposite-sex couples.

While the goals for both are probably the same – making sure that their property passes to their loved ones with the least amount of hassle as possible, this can be difficult, especially in light of the fact that same-sex couples cannot marry in Florida.  Additionally, federal laws also close many options to same-sex couples due to the Defense of Marriage Act (DOMA) passed in 1996 which provides that a “marriage” is a legal union which can only be between one man and one woman as husband and wife. 

[pullquote_right] Same-sex couples have the same estate planning needs as do opposite-sex couples – probably more so, than opposite-sex couples.  [/pullquote_right]

Although being married does have benefits under federal law and state laws (ability to file joint tax return, estate and gift tax marital deductions, portability of deceased spouse’s unused exemption amount, Florida homestead rights, elective share rights, to name a few), there are some basic estate planning techniques that same-sex couples can utilize.  Same-sex couples can take steps to ensure that they own their real estate as joint tenants with rights of survivorship (so that, if one dies, the other automatically is the owner of 100% of the property).  This also ensures that probate is avoided at the death of the first partner.

Partners should also make sure that their estate planning documents name each other as personal representative under the Will, agent under a power of attorney, and provide the authority for the other to make health care decisions.  Especially important is that each partner execute an “Authority to Dispose of Bodily Remains” which gives the surviving partner the right to plan the funeral and make burial decisions.  Otherwise, interfering family members may take over at the partner’s death leaving no recourse for the surviving partner.

The lack of rights for same-sex couples in both federal and state law makes it especially important that couples do a little bit of planning.  A little planning will most certainly go a long way!

If you are a same-sex couple seeking a Tampa Bay Area estate planning attorney to ensure the rights of both you and your partner are protected in case of incapacity or death, please contact elder law expert and estate planning attorney, Laurie Ohall, today.