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New Estate Planning Essentials for Same-Sex Couples

Here's how to proceed in the wake of the Supreme Court ruling striking down the Defense of Marriage Act

By Joan M. Burda

Now that the Supreme Court has ruled the Defense of Marriage Act unconstitutional, lesbian and gay married couples living in one of the 14 marriage-equality jurisdictions will benefit sooner in their estate planning than same-sex couples in the rest of the country.

States Covered by the Court's Ruling

The decision applies to same-sex married couples living in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and the District of Columbia. They'll now be treated exactly like all other married couples and will enjoy the same marital benefits for estate planning under state and federal law as heterosexual marriages, like the unlimited marital deduction, which lets one spouse transfer all assets to the other spouse free of federal estate or gift tax. (The upshot of the Supreme Court decision on California's Proposition 8 is that same-sex couples in that state will be allowed to marry by late July.)

(MORE: New Financial Planning Essentials for Same-Sex Couples)

The effect on estate planning for married same-sex couples who are living in the 37 other states is unclear; the Obama administration is considering how the decision would apply to them. The DOMA ruling won't apply to civil unions or domestic partnerships, however.

Time to Be Cautious in Most States

So lesbian and gay couples living outside the ruling's 13 states and Washington, D.C., need to proceed cautiously with their estate plans.
Given the new complications resulting from the court's ruling, it's now more important than ever to work with an estate lawyer with experience representing lesbian and gay clients to help draft key estate planning documents. This will help ensure your wishes are properly carried out.

A Guide to Using Estate Planning Documents

Here's my advice to same-sex couples about using basic estate planning documents properly in light of the Supreme Court ruling:
A Will If you and your partner don’t have wills and don't live in a state where same-sex marriages are allowed, your state will determine who will inherit each of your estates. In those states, your surviving spouse gets nothing if there’s no will. (This, of course, won't be the case if you live in a marriage equality state.)
Talk with your lawyer about whether a trust would be helpful. Even if you have a trust, however, you still need a will.
A few specific tips if you have one or more children: Name a guardian in the will to ensure the person you prefer will take care of your child or children, if necessary. Also, if state law allows, enter into a second-parent or joint adoption arrangement. If not, have your lawyer draft a joint custody agreement and file it in court. This document will support the position that the two of you are parenting the child, which will also prove helpful if the relationship ends.
(MORE: 5 Steps to Creating Your Digital Estate Plan)

Again, the rules have changed depending on where you live.

A child born to a married same-sex couple living in a marriage-equality jurisdiction will be considered a child of the marriage and both spouses will have parental rights -- just like every heterosexual couple under state and federal law. If you've adopted a child and plan to move to a state without marriage equality, that state is required to recognize the parental rights of both parents, which makes adoption a preferred method to establish parental rights.
A Domestic Partnership Agreement, or DPA Comparable to a prenuptial agreement, this contract is a useful way to address how you plan to share your income, expenses and property. In this agreement, you can specify which property you hold jointly and which is separate. This agreement, available free on sites like Rocket Lawyer, comes in handy if the relationship ends.

If you don't live in a marriage equality state but plan to get married in one, check with your lawyer about the legal ramifications. Then, if you will tie the knot, have a prenuptial agreement drawn up before exchanging vows.


Lesbian and gay couples living in a marriage-equality jurisdiction may also benefit from a prenuptial or post-nuptial agreement. Discuss this with your lawyer, too, since the DOMA decision has evened the playing field for you.

It’s a good idea to include a mediation or arbitration clause in these forms. That way, you and your partner can resolve disputes without resorting to expensive litigation.
HIPAA Authorization The Health Insurance Portability and Accountability Act allows you to authorize medical providers to discuss your condition and prognosis with your partner. Without it, doctors may claim that they can speak only with “immediate family” — and in most states, your partner is not considered “immediate family.”
Avoid this problem by filling out the HIPAA form. You can get one from your doctor or here.
A Living Will and Health Care Power of Attorney These documents allow your partner to carry out your wishes concerning your medical care.

Perhaps surprisingly, only about 30 percent of Americans have a living will. (Some experts, however, think a living will may not be clear enough to fully guide loved ones, as noted in another Next Avenue article.)

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You can download state-specific forms for a living will and health care power of attorney from organizations like Caring Connections, a national consumer initiative to improve end-of-life care.
General Durable Power of Attorney This document lets your partner manage your financial affairs if you become disabled. Although you can get a form online, it’s better to have a lawyer draft one specifically for your circumstances.

The Supreme Court decisions may create a tiered system of legal protections, at least for the foreseeable future. That's why it's important to get your estate plan ducks in a row, especially if you don't live in a marriage-recognition state.

The changes will continue to come and they may be significant. Your lawyer will be able to keep you informed about them and work with you to update your estate plan documents when necessary.

Joan M. Burda is the author of Estate Planning for Same-Sex Couples and Gay, Lesbian and Transgender Clients: A Lawyer's Guide. She has practiced law in Ohio for more than 28 years and is an adjunct professor of law at Case Western Reserve University School of Law and an adjunct faculty member in the legal studies program at Ursuline College. Read More
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