In this post, we discuss five steps that same-sex couples should take to make sure they have the proper estate plan in place to avoid legal issues.
Estate planning is important for all adults, whether single or married. If something should happen to you without an estate plan in place, the courts and the state will decide what happens to all of your assets.
If you are a part of a same-sex couple, then you are likely to face special situations that require extra planning.
This is especially true for unmarried couples because they are at risk for leaving the couple’s surviving member without any assets.
Below are five steps that same-sex couples should take to make sure they have the proper estate plan in place.
Confirm your marital status
Same-sex marriage was legalized nationwide in 2015 by the U.S. Supreme Court. Because of the pre-existing patchwork of state laws that were in place before that time, some issues regarding the marital status of couples that were married before 2015 could exist.
A common issue is with same-sex couples who married in states that recognized same-sex marriages but then moved to states that didn’t recognize those marriages.
In some cases, those couples later broke up while living in states that didn’t recognize their marriages. Because of this, some former couples have mistakenly believed that they did not need to legally dissolve their marriages. In other states, there were couples who had their registered domestic partnerships or civil unions automatically converted into legal marriages.
These two factors have resulted in several instances nationwide of couples who have found out they are married and didn’t know it.
Same-sex couples may need more than a will
You are probably aware that you should have a will in order to make it clear where assets should go when one member of the couple dies. This is especially important if there has been a previous marriage or children involved.
Besides having a will, a Power of Attorney is also a good item to take care of ahead of time. A power of attorney gives a spouse the power to act on your behalf in when you are unable to give consent to certain medical of financial decisions.
Setting up a trust might also be right for some couples who have concerns about legal battles over your assets when you die. It is not uncommon for same-sex couples to be estranged from their families, which can lead to their estates being contested in court if the correct steps have not been taken. Because trusts do not go through probate, they are less likely to be contested.
Plan for your medical needs
Same-sex spouses are more likely to be challenged when they make medical decisions for partners who are incapacitated. Because of this, they should make sure to document their medical wishes ahead of time.
Your options include designating a health care surrogate, which is essentially a power of attorney to make medical or spiritual decisions for you if you are incapacitated. They can also authorize who your medical information can be shared with.
Another option is a living will, which gives instructions on issues such as life support and medical treatment.
Plan for your children
In Illinois when a parents die, their assets pass to their children if there is no will in place. With same-sex couples, it is more common for only one parent to be biologically related to the children. You may need to make adoption part of your estate planning if you haven’t already.
Don’t count on DIY estate planning
There is do-it-yourself estate planning documents and services online, but they typically don’t account for the needs of same-sex couples. Because same-sex couples estates are more likely to be contested in court, you may not want to count on these services.
Talking with an estate planning attorney who understands the unique needs of LGBTQ couples can save your spouse from difficult legal, financial and emotional difficulties
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