On June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in the Obergefell v. Hodges decision. Now same-sex marriage is legal in all 50 states. Unfortunately, estate planning laws are still targeted toward opposite-sex marriages, so that means that LGBTQ couples should still plan their estates carefully.
Here are a few important considerations for married same-sex couples:
Execution of a Simple Will
Even with the new legal protections provided in the Obergefell ruling, it is still suggested that married same-sex couples consider the execution of a simple will. This will allow you to transfer your assets as you see fit and avoid potential legal cost. In addition, if you are the sole parent to minor children, you will need to appoint a guardian. If your spouse is not the legal parent of the child and you want them to raise the child, then you will need to appoint them as guardian in your will. Without doing so, the child will most likely be placed with their next of kin, as your spouse by law is considered a stepparent.
Execution of a Trust
A common misconception in estate planning is that trusts are only for the ultra-wealthy. This is not accurate – people can benefit from creating a trust regardless of their income status. Avoiding the cost and stress of the probate process is one of the main benefits of creating a trust, but this legal tool also affords greater privacy and the potential to minimize tax liability.
Execution of a Durable Power of Attorney and Health Care Proxy
Another misconception of estate planning is that marriage automatically gives your spouse Power of Attorney or Health Care Proxy powers or the functional equivalent. This is also incorrect. No matter if your spouse is same-sex or opposite-sex, in many cases they will still need legal authority to speak for you. Just think of a time when you tried to call a credit card company or utility company where your spouse was named on the account. If he or she was not available to authorize the call, the company won’t deal with you- even if you are married. This same situation can happen at banks and hospitals. If you don’t want your spouse to be barred from making medical or financial decisions for you because of privacy laws, you’ll need to put a Power of Attorney and Healthcare Directive in place before a crisis occurs.
If you are a newly married same-sex couple and you want further information how your estate plan should change, we invite you to call our Brandon estate planning office at (813) 438-8503 to schedule a consultation.