Estate planning is critical for everyone: single, married, straight and LGBTQ. However, for the LGBTQ community, estate planning provides additional rights and protections which may not be guaranteed as a result of same-sex marriage not being recognized nationwide.
In many states, if a member of the LGBTQ community fails to plan properly, the result can be devastating to his or her spouse or partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity. This need for an estate plan is critical in case of an accident or illness that renders a partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other spouse or partner could be legally precluded from having any role in the decision-making of his or her spouse or partner’s care, managing his or her affairs, or even having access to the incapacitated partner.
Even if you reside in a state that recognizes same-sex marriage, planning is critical in the event of travel to other states and jurisdictions which do not recognize your marital rights.
June 26, 2013, was a landmark day for LGBTQ couples across the United States. With two much-anticipated rulings, U.S. v Windsor and Hollingsworth v. Perry, the U.S. Supreme Court made federal benefits available to spouses in same-sex marriages and cleared the way for same-sex marriage. In U.S. v. Windsor, the Supreme Court struck down a section of the Defense of Marriage Act (DOMA), a federal law defining marriage as only between a man and a woman. That section of the law denied federal recognition to same-sex couples validly married under state law.
The purpose of the Court’s ruling was to ensure that all married couples within a state are treated equally under federal law. As a result, if a same-sex couple is married and resides in a state that recognizes their marriage, they will be entitled to all the federal benefits granted to other married couples in their state. Additionally, an IRS ruling provides that validly married same-sex couples will be treated as married by the IRS, regardless of where they live.
The majority of U.S. states now allow same-sex marriage. However, many states still prohibit same-sex marriage and its recognition, either by state statute or their state constitution. These developments are a celebration in civil liberties and a step towards the full equality for everyone under federal law. However, as you may imagine, this development has created legal complexities in estate planning for same-sex couples.
Some states and local jurisdictions offer domestic partnerships, civil unions, or similar methods of legal recognition for same-sex couples. In some states these forms of relationships are in addition to marriage, whereas in other states they may be offered instead of marriage. The rights and responsibilities of domestic partnerships or civil unions vary substantially from jurisdiction to jurisdiction. For example, in some states such relationships other than marriage do not affect property rights between the parties, but in other states they do. One thing is clear, these non-marriage alternatives will not result in recognition of the relationship by the federal government.
Before committing to a marriage, domestic partnership or civil union, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBTQ community. That attorney can counsel you on the implications in your unique situation.
An LGBTQ couple can avoid numerous problems through proper estate planning:
Di Duca Ellingson, APC offers a welcoming and inclusive environment for our LGBTQ Community. Contact our office today to schedule a consultation.
Our experienced attorneys combine proven legal expertise with genuine compassion, guiding you step-by-step so you feel informed and supported at every stage.
