The definition of “marriage” is a moving target so planning for same sex couples is a dynamic area of practice for estate planning attorneys. The last 10 years have shown many changes and great advancement for lesbian and gay couples.
- California and 4 other states have instituted marriage equivalents such as Civil Union or Domestic Partnership (Washington, Oregon, Nevada, and New Jersey.)
- 5 states and the District of Columbia permit same sex marriage (Massachusetts, Vermont, Connecticut, New Hampshire, and Iowa.) California briefly legalized same sex marriage before it was overturned by Proposition 8, which is currently being challenged in court.
- In addition, 3 states others provide same-sex couples with some statewide spousal rights (Maine, Wisconsin, and Colorado.)
- This means that 1 out of every 3 Americans lives in a jurisdiction recognizing same sex marriage or its legal equivalent.
However, the federal “Defense of Marriage Act” (“DOMA”) which specifically permits states to disregard same-sex marriages performed in other jurisdictions, specified that for purposes of federal law, marriage was between one man and one woman is still law.
This means that same sex marriages do not have equal rights with heterosexual couples.
- For example, same sex married couples are not entitled to receive the federal unlimited marital deduction. In a heterosexual marriage, one spouse can give, during life or at death, an unlimited amount of assets to the other spouse without incurring any federal estate tax.
- All couples need 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.