Having a well-thought-out estate plan is vital to anyone who wants to protect their loved ones and their assets. While the estate planning tools available to same-sex and opposite-sex couples are generally the same, planning within the context of a same-sex relationship involves some unique considerations.
All couples, regardless of sexual orientation, should begin by putting these key documents in place:
A will – Generally speaking, a will is a legal document that details the distribution of your assets upon your death and can appoint guardians for minor children. A will should be updated periodically to reflect any changes in your life, your relationships, and your desires. If you do not make a will, you will die intestate and your property will be distributed according to the intestate succession laws of your state. These typically rely on the legal relationship of marriage to determine who inherits your estate. If you are not married, or cannot get married in your state, intestate succession laws may leave your partner with no right to your property.
- A living will – This is a written statement that specifies what type of medical treatments you would or would not want, such as resuscitation, artificial nutrition and hydration, and medical ventilation.
- A health care power of attorney – This is a legal document that grants someone you trust and who understands your wishes the ability to make medical and end-of-life care decisions on your behalf.
- A durable financial power of attorney – This designates a person to handle your financial affairs if you become too ill or incapacitated. For example, if you need in-home health care professionals to assist you, the person selected would have the ability to pay them with your money.
- HIPAA privacy authorization form – This document allows doctors and other health care professionals to disclose pertinent health information and records with the person you designated in your health care power of attorney.
In addition, a number of your possessions, such as the assets you have in a 401(k) or 403(b) plan, can pass to your heirs without being dictated in the will. Make sure you have named beneficiaries and contingent beneficiaries and update them when appropriate. Insurance plans should also name a beneficiary and contingent beneficiary, since the proceeds usually pass outside of a will. If you previously named an ex-partner or former spouse as a beneficiary and forgot to change it, they will collect the value of the account when you die, regardless of who you name as a beneficiary in your will.
Same-sex parents have important estate planning concerns when it comes to children, especially when only one partner is the biological parent. A child, either born or adopted into a same-sex union, needs to be specifically identified throughout the estate planning documents.
In order to prevent opening the door to custody battles, the non-biological parent should strongly consider adopting that child (often referred to as a second-parent adoption, co-parent adoption, or stepparent adoption, depending on your state). This is particularly true if the child was born before the couple got married, since not every state has marital presumption laws. Adoption establishes a legal relationship and can help avoid having to battle for custody if anything happens to the biological parent.
The Supreme Court’s 2015 decision in Obergefell v. Hodges legalized same-sex marriage in the United States, but the patchwork of prior state laws has had some unintended consequences for estate planning. Some same-sex couples got married in states that recognized the union but then moved to a state that didn’t recognize the marriage and later separated. Often, they never legally dissolved the marriage. In some cases, certain states automatically converted registered domestic partnership or civil unions into legal marriages. Therefore, it is important that LGBTQ+ spouses resolve any prior domestic partnerships, civil unions, and other legal arrangements they may have created with prior partners from before their marriage was made legal.
Although there are intricacies to estate planning for same-sex couples, a skilled professional can help you craft a well-thought-out estate plan that will help ensure that your intentions are followed. This will give you peace of mind while alive and make things much easier for the loved ones you leave behind.