Even with the landmark U.S. Supreme Court decision and myriad state-level initiatives that recognized the validity of same-sex marriage, many of these couples still find themselves facing unique challenges where legal matters are concerned. For example, there are many inconsistencies from state to state regarding tax issues, beneficiary designations, insurance benefits and recognition of parentage that disproportionately affect same-sex couples, particularly those who are unmarried.
One area where careful consideration and thought is most definitely required for gay and lesbian couples is in estate planning. Married same-sex couples should, theoretically, be able to prepare their estate plans the same way as heterosexual couples, and with the same outcome. The reality, however, can be quite different.
Unique challenges for guardianship, estate taxes
If a same-sex couple has children, then chances are good that one (or both) parents is not biologically related to them. In that case, the non-biological parent must proceed with a formal adoption of the child in order to enjoy full legal parental rights. Such rights include the ability to bring a suit for custody or visitation and to request court-ordered child support. This is the case even if the biological parent of the child (i.e., the other half of the same-sex couple) passes away; the biological relatives of the child, particularly grandparents, could have a legal claim unless steps are taken to “legitimize” parentage through adoption.
Laws in this area are evolving to recognize the “legitimacy” of children born or adopted into wedlock, even for same-sex couples, but they vary widely by jurisdiction. An experienced estate planning attorney can, working alongside family law experts, tell you the best legal course of action to ensure that you and your children’s long-term best interests are protected if you are in a same-sex relationship. Estate planning documents can detail proposed guardianship arrangements, but those could be challenged by biological relatives if not done exactingly.
Another unique challenge that same-sex unmarried couples could face concerns estate taxes. Some long-term partners (both same-sex and heterosexual) choose, for whatever reasons, to not marry. That is,Da of course, their right. It doesn’t come without potential consequences, however, particularly in the estate planning arena. The biggest one deals with estate taxes.
Married couples, regardless of sexual orientation, enjoy significant estate tax benefits that simply aren’t available to unmarried people. Depending on the size of the estate you leave behind, your partner could be on the proverbial hook for a sizable amount. This could be provided for with the purchase of sufficient life insurance, but that must be done in advance in order to be effective.
If you have questions about these or other estate planning issues, contact a local estate planning attorney as soon as possible.