Same sex couples often face unique challenges when it comes to an estate planning. Since the states’ intestacy laws have been historically focused on traditional families, same-sex couples may face challenges if one of them passes without an estate plan.
Since the United States Supreme Court’s decision to legalize same-sex marriages in June 2015, there has been a significant rise in same-sex marriages. According to a Gallup survey, same-sex marriages increased by 123,000 in just 2015.
Despite the U.S. Supreme Court ruling, however, many states’ intestacy laws continue to focus on traditional marriages. (The intestacy laws do not address disability or incapacity of the individuals.) It’s essential, therefore, for same-sex couples to create solid estate plans to be certain their wishes are carried out in the event of a death or disability of one of the partners, especially if the partners have adopted children or desire to limit or modify the “traditional” distribution of assets.
Written Estate Plans Override Individual State Laws
Generally, states designate specified percentages of assets to the deceased’s spouse, kids, or other relatives. Sadly, such division of assets may not necessary reflect the same sex couples’ wishes. For instance, if one partner of the same sex couple was previously married, some states will give this person a percentage of the partner’s estate. Only a written estate plan ensures both partners having their wishes carried out.
Revocable Living Trusts Are Key in Asset Distribution
Without a will, the states’ intestate laws control the asset distribution. To modify the states’ default laws, therefore, the same-sex couples shall prepare a will and/or a trust that would address such couple’s desires. Revocable living trusts may also preserve the assets and provide protections in the event of a partner’s incapacity or disability. Provisions of these revocable living trusts can be amended, revoked, or modified as needed during the grantor’s life. Same-sex couples, therefore, should engage in a proactive planning and address all of the issues specific to their individual situation.
This article is intended to serve as a general summary of the issues outlined therein. While this article may include general guidance, it is not intended as, nor is it a substitute for, a qualified legal advice. Your receipt of this article from Lexern Law Group, Ltd. (the “LLG”) or any of its attorneys does not create an attorney-client relationship between you and the LLG. The opinions expressed in this article are those of the authors of the article and does not reflect the opinion of the LLG.