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Same-sex couples should make or review estate plans

Since same-sex marriage became legal in Colorado in October 2014, it may seem that legal matters related to the marital relationship like those concerning property, inheritance, children, medical decision making, visitation in hospitals and other similar issues are resolved.

However, it is wise for anyone in a same-sex relationship to sit down with an attorney to discuss certain legal issues, especially those concerning estate planning that can directly impact each partner as well as their children in significant ways. 

Understand the legal relationship

First, same-sex partners should clarify their legal status vis-à-vis previous relationships and the current relationship. Different legal relationships may need to be handled differently when it comes to estate planning.

USA Today explains that complicated legal issues can arise, for example, if a partner had entered into a same-sex marriage to someone else in a state that recognized it before federal recognition of same-sex marriage. Answers will need to be found to questions like could the marriage still be legal and a divorce needed before moving forward in the new relationship? You cannot assume that such a marriage is invalid without confirming it because this kind of legal issue is especially complex. 

Civil union or domestic partnership 

Similarly, if either person were previously in a civil union or domestic partnership in another state, was it legally dissolved? What does Colorado law say about the status? Some jurisdictions automatically converted these kinds of legal relationships to marriage, which may not be known to an individual who has assumed the legal status was over. 

Designated beneficiary agreement 

Finally, even if someone has always resided in Colorado, a previous civil union or designated beneficiary agreement with another person or even with the current partner should be reviewed to understand how it impacts the rights and responsibilities of the parties. Also, partners in a Colorado civil union may marry each other without dissolving the union first, resulting in a merger of the two legal relationships. On the other hand, a previous union with another person must be dissolved before either may marry someone else. 

Comprehensive estate-plan review 

Once the legal status of the relationship is clear, the couple will need to decide whether to stay in that status or enter into a marriage, civil union or designated beneficiary agreement. An experienced estate planning lawyer can explain the legal issues related to the relationships created by each of these statuses. In particular, questions should be answered concerning issues related to: 

  • Parentage and guardianship issues, including adoption, if either partner should die or upon divorce or union dissolution
  • Legal status of children as it impacts inheritance
  • Surrogacy and other assisted reproduction issues
  • Visitation rights in hospitals
  • Medical and end-of-life decision making
  • Financial powers of attorney
  • Real estate titling
  • Wills and trusts
  • Beneficiary issues regarding life and other insurance and retirement assets
  • Personal property
  • Gift and estate taxes
  • Other federal and state tax ramifications
  • Premarital and postmarital agreements
  • Immigration issues based on the family relationship

Anyone in a same-sex relationship with questions about any of these issues should seek legal advice from an experienced and knowledgeable lawyer.

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