Estate planning for same-sex couples is the same now as it is for other married couples. It hasn’t always been like this, so if you are a member of the LGBTQ community, you know about the struggle for equality. Fortunately, the struggle has finally started to produce tangible results as evidenced by the Supreme Court decision declaring the right to marry to be a fundamental right that cannot be infringed upon by state laws probiting same-sex marriage.
Estate Planning for Same-Sex Couples
While that decision certainly may have a direct impact on the estate plans of many same-sex couples, it does not completely do away with the heightened importance of estate planning. Below, we discuss how estate planning for same-sex couples is different and everything you need to know. It wasn’t that long ago that laws across the country banned same-sex couples from marrying, and almost all state and federal benefits refused to recognize these unions even if it was performed in one of the few states that allowed them.
It’s Been a Long, Hard Road
The 2015 case of Obergefell v. Hodges made history when the Supreme Court declared that states must allow a same-sex couple to marry and must recognize same-sex marriages from other states. That victory represents much more than just the ability to legalize a relationship. As members and supporters know, the right to marry also comes with numerous important practical and legal benefits that have historically only been available to opposite-sex couples. As important as the ability to legally marry is, however, it does not do away with the need for LGBTQ estate planning.
Post Obergefell Confusion and the Need for Estate Planning for Same-Sex Couples
One reason that estate planning for same-sex couples has always been important is to ensure that your wishes are honored in the event of incapacity or death. While that same reason applies to anyone creating an estate plan, it can be particularly crucial to a same-sex couple if family members fail to recognize and/or respect your wishes with regard to your partner. Although society, in general, has come a long way with respect to attitudes toward, and acceptance of, members of the LGBTQ community, the reality is that some family members may still be less than accepting. When that is the case, estate planning ensures that your wishes are honored.
You may be laboring under the belief that the recent Supreme Court decision allowing same-sex marriage means that family opinions are irrelevant once you are legally married; however, the confusion following that decision has created yet another set of problems that once again make proper estate planning important. Prior to the Supreme Court decision, some same-sex couples who were married in a state that recognized their marriage, moved to a state that did not recognize same-sex marriage, and then separated. Because they were living in a state that did not recognize same-sex marriage, they never bothered to divorce. Now, however, all states must recognize same-sex marriage, meaning they are still legally married. Another potential source of confusion occurs when a same-sex couple registered in a state that did not allow same-sex marriage but offered an alternative such as a civil union. After the S.C. decision, some states automatically converted civil unions (or similar status) to a legal marriage. In either case, you could be legally married and not realize it. If you have since married, this creates a legal quagmire that could lead to protracted litigation in the event of your incapacity or following your death.
Finally, if you have minor children, the ability to legally marry doesn’t always resolve issues related to those children. Your spouse may still need to adopt your children for him/her to have automatically recognized legal rights to them. Yet again, estate planning can help by offering you the ability to appoint your spouse/partner as Guardian of your children and Trustee of a trust intended to guard their inheritance should something happen to you before they reach the age of majority.
Contact Collins Law Group
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns relating to LGBTQ estate planning in the State of California, be sure to consult with an experienced Torrance estate planning lawyer. Contact the Collins Law Firm by calling (310) 677-9787 to register for one of our FREE estate planning workshops.
Attorney Caprice L. Collins is a top rated Harvard Law School graduate. She has 34 years of legal experience with a successful law practice devoted exclusively to Estate/Business Planning and Trust Administration. Attorney Collins is a well-respected keynote speaker on Wills, Living Trusts, Estate Planning, Business Planning and Trust Administration. She has appeared on California’s Real Estate Radio Station KTLK AM 1150 as a legal expert on Estate Planning and Living Trusts among many other notable media appearances.