There are 5.5 million households in the US classified as “unmarried” and many of these are same-sex households. Although the LGBT community can certainly take advantage of much of the traditional estate planning tools we use, they can also benefit from some of the unique tools designed to address the special needs of this community that require special planning.
Why special? Aren’t these the same issues as other families? Yes, however, there is added stress in some of these relationships presented by relatives, or children from prior relationships that can cause these special problems during life and which their “heirs” that can create after death. Also, there is the issue of long term care and Medicaid (see below). Estranged family members may not recognize a same-sex partner as they would a “traditional” spouse.
The Legality of Marriages Performed in “Other” States
Florida does not recognize marriages officiated in states where gay marriage has been legalized. This is because of the Defense of Marriage Act (DOMA), passed in 1996, which precludes states from recognizing same-sex marriages that happen out-of-state. In Florida, some additional rights afforded to a “spouse” or “surviving spouse” that may not exist for a surviving same-sex partner, include the validity of claims of the surviving spouse for Social Security benefits, spousal, death or survivor benefits, Veteran’s surviving spouse benefits, as well as these benefits listed below:
- Elective Share
- Exempt Property
- Marital deduction
- IRA rollovers
- First right to be named guardian if not has been named in a pre-need declaration
- Right to make health care decisions in lieu of a written surrogate
- Inheritance rights
- Tax breaks
- Medicaid breaks
Some of the “Issues” That Can Arise:
- Degree we want to give benefits/support etc. the surviving partner
- Children from prior marriages
- Incapacity-Alzheimer’s disease and Dementia
There is a lot that same-sex couples can do to protect themselves and their partners in preparation for incapacity or death, and regardless of the size of their estate:
- Drafting a Will and Trust instruments to be very specific. For example, a subsequent divorce would exclude a spouse but there is no equivalent for a same-sex partner. Define partner. Also, separation, Incapacity.
- Also definition of children may be broader and include children of the partner.
- Joint property. Special Estate Tax considerations and Medicaid issues (see below)
- HCPA – health decisions, even visitation in hospital. Arrange beforehand if possible; otherwise include it in the agreement. Give to all doctors.
- Cohabitation agreements
- Pre need guardian
- Pre paid funeral naming the partner
- Medicaid-Joint property; issues regarding who is owner; issues regarding Medicaid.
***Include all the details and specifics you can to make it clear to the world that the decisions of the surviving same-sex partner are final.
Summary Basic Vital Documents
- Wills and Trusts
- Advance Directives: Living Will, Health Care Surrogate and Durable Power of Attorney
- Disposition of remains
Others for consideration:
- Deed to the home(s)
- Beneficiary designations
- POD accounts
- Life insurance
A Domestic Partnership Agreement can address expenses, assets and liabilities; keep matters private and reduce or eliminate attorneys’ fees if there is a breakup. This can be executed at any time.
The negative consequences of not being married legally for some, is outweighed by the freedom to create your own legal relationship without limitations of state marriage laws.
You can listen to our FREE Audio and read our Special Report that discusses the Critical and Unique Elder Law and Estate Planning Issues for Same-Sex Couples, by clicking here to go to our FREE Online Elder Law, Estate Planning, and Special Needs Resource Center. Or, to request a hardcopy be mailed to you, click here to fill out a request form.