Since the United States Supreme Court’s decision confirmed the union of same-sex marriages, both married and unmarried same-sex couples continue to experience challenges concerning protecting their assets and legal rights which opposite-sex couples normally take for granted. While the laws backing same-sex marriages (specifically the Obergefell v. Hodges) remain in place, there is a latent fear that matters surrounding same-sex unions may once again become debatable so long those in judicial and legislative powers continue to change. As the Justices in the Supreme Court are replaced year after year, there may come a time when the rights of same-sex couples would become unprotected or completely nullified and then there would arise a plethora of financial crises amongst spouses of same sexes. This drives to the fact that creating a sound and definite estate plan that would hold no matter what, has become dearly important. Of course, the estate planning documents for opposite-sex couples are the same available to same-sex couples, but putting the concept of same-sex into your estate planning require you to make some unique considerations.
This goes without saying. Everybody needs estate planning, and the importance of this becomes heightened when one is married. Just as with opposite-sex couples, same-sex couples need to create an estate plan as soon as possible and to do this, communication is key.
If you are in such a relationship, the both of you should be open about your financial goals. Each spouse should state what assets and debts he or she is bringing into the union. Short and long term financial goals should be discussed and how these assets would be owned and managed, whether jointly or separately.
Create a flexible estate plan
Estate planning should be such that amendments can easily be made in the future. Knowing fully well that life happens and the both of you may decide to adopt or raise children in the future, both of you should create a concrete estate plan that would give you the best life, protect your financial future and that of your kids. As you progress further into your lives, make assessment of changes and how these changes would in turn affect your estate plan, and ensure everything is up to date. You should know that without estate planning, the distribution of your assets would be governed by the same law of intestate succession as with opposite-sex couples, and these laws vary across states. In most states, the intestate law hands over all or a significant portion of the deceased assets to the surviving spouse, and determining what exact portion to bestow on the surviving spouse becomes a problem. Also, if the state laws surrounding same-sex marriage changes, then dying intestate would pose a major challenge to the surviving same-sex partner as there would be a large degree of uncertainty regarding the partner’s rights during probate.
Consider the various estate planning tools available and create the one which best serves your mutual goals
As a same-sex couple, there are estate planning tools available to you, just as with opposite-sex couples.
The will is one of the most important estate planning tools which every couple ought to have, same-sex or not. In fact, it is the heart of estate planning. As a couple, you should specify how your assets will be distributed when one spouse dies, and how the surviving partner benefits from it. When a will is not in place, then the laws of intestate succession may leave that partner with no right to the property. You can get help drafting a will online or kindly hire a Will attorney to draft a more complicated will depending on the complexity of your estate.
The downside to a will is that it must be probated after the death of the testator. Probate is a long, expensive and complicated process by which the court wraps up your estate, and a lot of fees are associated with it. When you create a trust, then all these expenses would no longer be a source of worry because with a trust, probate is avoided. When you create a trust, you choose who gets your assets in the event of your death. But the problem is for same-sex marriages, avoiding probate becomes a little more complicated as the laws in most states do not easily allow for avoidance of probate for same-sex couples. However, you can avoid probate by creating a living trust; Transfer-on-death accounts, registration and deeds; or Joint ownership. With these documents, you could transfer your assets to your same-sex partner immediately after your death without putting them through the stress of probate.
Financial power of attorney
If you want to ensure that your same-sex partner becomes responsible for handling your finances and making financial decisions on your behalf when you become ill or incapacitated, then you should create a financial power of attorney in which you name your same-sex spouse.
Health care directives
Also called a living will, a health care directive appoints a person (your same-sex spouse if you want) to make medical decisions on your behalf when you become incapacitated. It also enables you lay down instructions on what kind of medical care you want and do not want.
Health care directives are vital in same-sex marriages as they put forth clear-cut instructions for providing care, without questioning the legality of the relationship.