The definition of “marriage” is a moving target so planning for same sex couples is a dynamic area of practice for estate planning attorneys. Recent years have seen many changes and great advancement for lesbian and gay couples.
Prior to 2015:
- California and other states have instituted marriage equivalents such as Civil Union or Domestic Partnership
- Some states and the District of Columbia permited same sex marriage. California briefly legalized same sex marriage before it was overturned by Proposition 8, which was then challenged in court.
- Still other states provided same-sex couples with some statewide spousal rights.
In 2015, in a landmark decision and by a 5 to 4 vote, the United States Supreme Court ruled that same sex marriages were valid in all 50 states.
However, that is not the end of the story. Three recent justices appointmente to the U.S. Supreme Court have shifted the balance of the court to a primarily 6 to 3 conservative direction. In the recent case which overruled the abortion rights case Roe vs. Wade, at least one conservative justice encouraged the court to revisit other prior court decisions, including the same sex marriage case. What will happen remains to be seen.
What does this mean for same sex couples. You should not be complacent that because same sex marriages are currently legal that it will remain so.
If the Supreme Court’s marriage equality decision is overruled, among other consequences, same sex married couples may not be entitled to receive the federal unlimited marital deduction or automatically inherit from their companion. Currently, one spouse can give, during life or at death, an unlimited amount of assets to the other spouse without incurring any federal estate tax.
The upshot is that all same-sex coules need at least basic estate planning to ensure that their wishes are carried out. Basic estate planning includes counseling, goal setting, plan design, document drafting, document drafting, plan execution, and funding. Basic estate planning documents include the revocable living trust, pour over will, advance health care directive, powers of attorney for finances and HIPAA (medical privacy) release.
If you have questions about estate planning for same sex couples, consult with an experienced and qualified estate planning attorney who is also knowledgeable about the special planning needs of same sex couples and is comfortable working in this sensitive area.
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