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Estate planning for same-sex couples presents unique issues

Despite the fact that the rights of same-sex couples have come a long way in recent years, same-sex couples in Florida and across the nation face issues in their daily lives that opposite-sex couples do not. For example, estate planning is important for all adults in our nation, but it presents complexities for same-sex couples.

First, it is important for same-sex couples to understand their marital status. Although same-sex marriage was legalized nationwide in 2015, prior to 2015 same-sex couples may have wed in one state that legalized same-sex marriage. Later on, they may have moved to a different state that did not recognize same-sex marriages. After that, they may have broken up but, unless they legally divorced, they may still be considered to be married to their former partner. Moreover, some states that recognized domestic partnerships for same-sex couples automatically converted those relationships to marriage per law. Therefore, it may be necessary to seek a divorce, so that one’s assets are passed on to the right spouse.

In addition, same-sex couples may find that, even if they created a will, after their death their relatives might contest that will, especially if the deceased was estranged from his or her family. For this reason, creating a trust may be preferable, as they can be funded while the couple is still alive, and trusts aren’t subject to probate, lessening the chance that a relative will contest it.

Same-sex couples may also face challenges if their spouse becomes incapacitated and they need to make health care decisions on their partner’s behalf. For this reason, they may want to appoint a health care proxy and execute a living will.

In addition, if a same-sex couple has children, and they want to pass their property down to their children, they need to make sure that they are legally named as the child’s parents. This means that the child’s non-biological parent may have to formally adopt the child. If the child is not legally the progeny of an adult, they may be passed over when it comes to passing down the person’s assets after their death.

As this shows, estate planning for same-sex couples can be complex, so they may not want to handle it alone. Estate planning attorneys can help same-sex couples build a solid estate plan that addresses the unique issues they face.

Source: USA Today, “Estate planning is more complicated for same-sex couples,” Tina Orem, June 17, 2017

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