When same-sex couples across the country received the right to marry back in 2015, they also gained numerous advantages previously only available to married heterosexual couples. One area where not enough married couples, same-sex or not, take advantage of the benefits of marriage is estate planning.
Estate planning goes well beyond just executing a will, and as a same-sex couple, married or not, a comprehensive plan could save you some grief in the event that one of you becomes incapacitated or passes away. Of course, your last will and testament remains the cornerstone of a good estate plan, and without one, things can get complicated fast.
Dying without a will
If you should predecease your spouse and not have a will, state law determines who inherits your assets. Sure, your spouse is likely to have access to some of your estate, but the remainder could end up with relatives you never intended to give anything to if you had made your own arrangements. Your estate could end up supporting parents and siblings who failed to support you when you decided to marry your partner.
In a will, you can clearly outline who you want to receive certain assets, and who you want to exclude from your will, if that is your choice. In addition, it’s only been a short time since the LGBT community gained the right to marry, and the courts are still catching up in other areas of the law. Having a will helps guarantee that your spouse will receive the assets you intend.
Trusts and beneficiary designations
After your will, you may consider creating a trust. You can put assets into this trust for your spouse that will be immediately available to him or her upon your death. Those assets will not have to go through a time-consuming and often costly probate.
Some of your assets (such as retirement plans, bank/investment accounts and life insurance policies) require you, or give you the option, to execute a beneficiary designation or pay-on-death form. These forms identify the person or persons you want to receive the proceeds of the account upon your death. These assets also do not go through probate.
You may want to be aware that these documents most often override whatever you say in your will about these assets. Therefore, use caution when identifying beneficiaries in your will. If you want a certain person to receive the proceeds of an asset, be sure the documentation reflects your wishes.
Powers of attorney
Many people automatically assume that spouses can make medical and financial decisions on behalf of an incapacitated spouse. That may not always be the case, especially for same-sex couples. It would be prudent to execute powers of attorney for health care and financial decisions in order to make sure that your spouse can make crucial medical and financial decisions for you if you are unable to due to an illness or injury.
Estate planning help
No one likes to contemplate their own incapacitation or demise, but everyone should. Creating a comprehensive estate plan may still be even more important for same-sex couples as the courts and lawmakers continue to catch up with the times. In order to make sure that whatever plans you want to make don’t fall apart when they are needed, it may be a good idea to utilize the legal services in your area.