What Same-Sex Couples Should Know About Estate Planning

Estate planning is often confusing for many people. Estate planning for same-sex couples can seem even more complex regardless of whether or not you are married. Luckily, estate planning for same-sex couples doesn’t have to be overwhelming or difficult to understand. As the laws continue to change, it is as important as ever to consult with an experienced estate planning attorney who understands the planning issues for those in the LGBTQ community.

Landmark Supreme Court Case Changes Things

The good news is that most planning issues are the same now for same-sex and non-same-sex couples. Prior to 2015 when the United States Supreme Court upheld the rights of same-sex couples to marry in every state, estate planning for same-sex couples used to prove much more difficult. Now that all 50 states recognize same-sex marriage, they are entitled to the same rights that heterosexual couples have been entitled to and have the same tax benefits (and penalties in some cases) as non-same-sex married couples.

For many couples – and individuals – estate planning is often difficult to think about because it is associated with disease and death. Or as we call it with our clients–the 5 D’s: Disease, Disability, Dementia, Death, and Denial! Of course a client came up with a 6th D–saying it was all very Depressing! However, the best time to plan for your estate was yesterday but the second best is today. We call what we do Peace of Mind Planning because it is smarter to be proactive rather than reactive, and getting your planning done can give you and your loved ones peace of mind.

As I said, the planning issues for married couples is pretty much the same these days whether they are same-sex of not. But the planning for unmarried couples, either in informal relationships or is some type of domestic partnership is very different than married couples. But interestingly, the legal issues for unmarried couples were always very similar regardless of whether the couple was same-sex of heterosexual. It still required having a legally sufficient plan in place to avoid unintended consequences.  

Informal couples or domestic partners run into a lot of issues when it comes to a lack of estate planning documents. You will have no legal authority to access your partner’s health records and will be unable to make decisions regarding their medical care and it may prove difficult to access the distribution of employee benefits when your domestic partner passes. And without a Will or Trust in place naming the partner as a beneficiary, the partner is not covered by the laws of intestacy of any jurisdiction and will be unable to receive any of the deceased partner’s property.  Ordinarily, when an individual passes intestate (without a will), the property will automatically go to certain heirs of the estate (e.g. spouse or children if they have any). But when you are not married, the property will not automatically pass to you and you may experience difficulty establishing standing to open a probate estate for your partner who has passed.

If the surviving partner is named as a life insurance or retirement account beneficiary he or she will receive those benefits but will not be able to make any elections that are available only to a married couple. A plan to address things like that is a key part of a Peace of Mind plan.

Facing the “5 D’s” Without an Estate Plan

The bottom line is, if you are in a same-sex relationship and are not married, you must plan – even minimally – should you desire for your partner to receive any property or benefits. Additionally, you must be sure to nominate someone to make medical decisions for you should you be found legally incapacitated. Don’t think your partner can be that person unless he or she is specifically named in a valid legal document–they will not. Basic estate planning documents include:

  • A Last Will and Testament and/or a Revocable Living Trust
  • Durable Power of Attorney for financial matters
  • Durable Health Care Power of Attorney
  • Living Will/Advance Medical Directive
  •  Do Not Resuscitate Order or Medical Order on Life Sustaining Treatment (MOLST/POLST) [if appropriate]
  • Beneficiary Designations for life insurance policies, annuities, and retirement accounts (401ks/403bs/IRAs/Roth IRAs as well)

The Attorneys at Reilly Law, PLC Help Create Estate Plans for Same-Sex Couples in the Greater Washington DC area.

Although estate planning can appear quite complex, it is extremely important and should not be shied away from. It is best to consult with an estate planning attorney in D.C. who has experience working with individuals in the LGBTQ community. At Reilly Law, PLC, we can help to walk you through the process of estate planning to ensure that you and your loved ones are protected and that your wishes be honored. To learn more or to schedule a free consultation, visit us online or call us at 703-579-1936 today!