Summary: All couples, whether same-sex or opposite-sex, can marry in any state in the country. The legal landscape for same-sex married couples is still relatively new given the short period of time in which marriage has been an option. If you’re a same-sex couple that has decided to marry, you should make the mistake of thinking that, now that you’re married, you no longer have a pressing need for thorough and careful estate planning. Even with legal status, same-sex married couples have just as much need for estate planning as their heterosexual counterparts and, in many situations, even more.
As of the fall of 2016, the landmark U.S. Supreme Court decision that legalized same-sex marriage in all states had been in effect for a little more than one year. With that ruling, the institution of marriage became available to an expanded number of couples. The availability of the option to get married is likely very exciting for many couples; something long hoped for and greatly anticipated. In the past, many same sex partners were strongly warned to make very sure they engaged in careful estate planning because, in the absence of an option to obtain a legal recognition of their relationship, a complete estate plan was their only safeguard against potential outcomes that would be extremely damaging to their partners.
However, even though marriage is legal now, and you may have even decided to “take the plunge,” that doesn’t mean that you should now ignore the need for estate planning. This is true for many reasons. First, just because you’re legally married now, that status doesn’t mean that your spouse will necessarily inherit what you want him/her to. Same-sex couples find themselves in a unique legal situation due to the history of marriage in this country. Same-sex marriage has only been available everywhere since 2015, and has only been available anywhere since 2003. This means that many same-sex couples, especially older ones, have lived for years or decades without marriage. A side-effect of this is that, even if they’ve married now, they may have accumulated, and perhaps continue to hold, substantial amounts of wealth separately instead of holding the vast majority of their wealth jointly as spouses.
If you die with no estate plan, your assets will pass according to what’s known as the “intestacy statute.” Generally, under most states’ intestacy statutes, a deceased person’s assets are split between the person’s spouse, children and parents/siblings, depending on who survives the deceased person. In Texas, for example, if don’t have children and you die before your spouse and your parents, while your spouse would take all of the real estate you two own together, if there is any real estate you happen to own in your own name, then that property gets split 50-50 between your spouse and your parents. In a state like Pennsylvania, the parents’ share is even more dramatic. Your spouse gets the first $30,000 from your estate. After that, everything is split 50-50. If one of your estate planning goals is to ensure that your spouse inherits most or all of your assets, then you need to make sure that you have a valid estate plan in place.
Secondly, and relatedly, your plan can carry out your goals in the unfortunate event that your spouse dies befoee you do. If that happens, your estate at the time of your death may include not just your wealth but much or all of your spouse’s wealth. If you have no children and have no plan, the intestacy statutes will seek out your closest living relatives and give them this entire amount. That may not be what you want. Perhaps you are estranged from your family. Perhaps you and your spouse always talking of leaving your wealth to a favorite charity after you both die. In either of these scenarios, you need a plan in place to make these objectives occur.
Finally, your complete estate plan will include power of attorney documents, which can be extremely helpful if you become ill or injured. Power of attorney documents allow the person named within them as the signor’s agent to make many essential decisions on the signor’s behalf. These can include decisions about medical care as well as financial matters. Your medical power of attorney (sometimes known as a healthcare proxy) allows you to name whomever you want to make medical decisions on your behalf if you cannot make them yourself. While spouses generally can make decisions on each other’s behalf by virtue of their marriage, what if your spouse travels extensively? Or is in poor health? Your document can ensure that another trusted friend or relative is authorized to act.
Your financial power of attorney can be very helpful even if your spouse is the person you want to handle everything. Your spouse cannot use his/her marital status to gain automatic authority to access and control your financial accounts you own by yourself. If you have these kinds of assets, you need to have financial power of attorney in place that names your spouse (or the person you want to manage your wealth) as legally authorized to do so.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201