Protecting Your Rights: Estate Planning Strategies for Same-Sex Couples

Moreover, funeral homes and other service providers don't wait for the court process. Most funeral homes require payment within days, often ranging from $10,000 to $25,000 or more. While these costs can eventually be reimbursed from the estate (if there are funds available), the executor would need to pay them personally and wait months for reimbursement. This situation can create significant stress, especially if the executor doesn't have readily available funds.

Beyond funeral expenses, executors often need to pay ongoing bills for the deceased's home, such as property taxes, utility bills, insurance premiums, and maintenance costs, which must continue even though the estate's assets are frozen. Again, these expenses typically must be paid out-of-pocket until the executor gains legal access to the deceased person's accounts. Some executors report spending thousands of dollars of their own money during this interim period, creating financial strain at an already difficult time.

Finally, depending on who drafted your will (did you do it on your own, have a lawyer well-versed in estate planning or perhaps a lawyer who just dabbles in wills and trusts?), your executor could be required to come up with the money to pay a bond, which is like an insurance policy that can be thousands of dollars out of pocket, before they can be appointed by the court to serve.

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Understanding Current Protections and Potential Changes

Same-sex marriage is currently recognized in all 50 states under federal law, protected by the Supreme Court's Obergefell decision and the Respect for Marriage Act. If you were married in states like Massachusetts or New York—early adopters of marriage equality—your marriage remains valid under those state laws regardless of federal changes. But state-level protections vary significantly. Some states have explicit constitutional protections for same-sex marriage, while others maintain laws that could restrict marriage rights if federal protections change. Understanding your state's specific laws is crucial. For example, Massachusetts not only recognizes same-sex marriage but also provides strong protections for non-biological parents and inheritance rights. However, federal policy shifts could affect crucial benefits far beyond basic marriage recognition. You might lose access to:

-The unlimited marital deduction for federal estate taxes, which currently allows married couples to transfer unlimited assets to each other without tax implications

-Spousal Social Security benefits, including survivor benefits that can provide crucial financial support

-Federal retirement plan options, like tax-free rollovers for spouses and inherited IRA benefits

-Certain immigration rights for non-citizen spouses, including green card eligibility and expedited citizenship

-Federal employee benefits for government workers' spouses

-Military benefits for service members' spouses

Additionally, moving to a state that doesn't recognize same-sex marriage could create complications with healthcare decisions, property rights, and parental rights if you have children. This uncertainty makes proper estate planning even more crucial for same-sex couples. So, to protect your loved ones from these uncertainties, let's explore the essential legal tools that can safeguard your rights and assets, regardless of marriage recognition.

Essential Components of Your Life & Legacy Plan

Before marriage equality, same-sex couples relied on legal planning to create many of the protections that marriage now provides automatically. These strategies remain potent tools today - if you have a comprehensive estate plan in place. A Life & Legacy Plan is a comprehensive plan that ensures your wishes are honored and your loved ones are protected regardless of potential legal changes. When you work with me, your Life & Legacy Plan may include:

Trust Planning: A trust allows you to control how your assets pass to your partner without relying on marriage laws. A trust also covers incapacity, so your assets will be handled smoothly by the person you want while you’re alive and after you die. This is especially important if your marriage is not recognized where you live. A trust can also include specific provisions for:

-Real estate holdings and how they should be managed

-Business interests and succession planning

-Investment accounts and their distribution

-Personal property with sentimental value

-Digital assets and cryptocurrencies

Healthcare Directive: If your marriage isn't legally recognized, a hospital may not automatically allow your spouse to make medical decisions for you. A healthcare directive can legally designate them as the person with that authority (or anyone you wish) and ensures your wishes for medical care are followed, even if a hospital or family member disagrees.

Power of Attorney: This crucial document ensures your spouse (or anyone of your choosing) can handle financial matters if you become incapacitated, even if the state doesn't recognize your marriage. It gives them legal authority to manage bank accounts, pay bills, and handle property matters on your behalf.

Beneficiary Designations: Many assets, like life insurance policies and retirement accounts, pass directly to the named beneficiary, who can be anyone you choose. Regular review and updates of these designations ensure that the person you want receives these funds without legal complications. You don’t want to rely on beneficiary designations alone, as there are risks. When you create a Life & Legacy Plan, you’ll learn about the risks and make the best decisions for you. I’ll also support you to review your plan, including beneficiary accounts, on a regular basis so you don’t accidentally leave assets to anyone you wouldn't want to receive them.

Cohabitation Agreement: If marriage laws change, a legal agreement between you and your spouse can define your financial responsibilities and property rights. This can help protect both of you, particularly if you own property together or one of you relies financially on the other. When you meet with me, we can discuss these in more detail to see if a cohabitation agreement makes sense for you.

All these components of a Life & Legacy Plan can protect you and your loved ones, but they won’t do that if you procrastinate - which is the number one reason why people fail to plan and put their loved ones at risk. So, understanding why immediate action is crucial can help motivate you to put these critical protections in place now rather than waiting until it might be too late.

Why You Shouldn't Wait to Plan

While it's tempting to take a "wait and see" approach in times of uncertainty, waiting could leave you unprotected if laws change quickly. The time to create these protections is now, while you have all options available. Waiting creates unnecessary risk and could limit your planning choices if laws change suddenly.

Even if same-sex marriage protections remain intact, Life & Legacy Planning offers benefits beyond marriage rights. It helps you avoid probate, protects your assets from unnecessary taxes, and ensures your wishes are carried out exactly as you intend. In addition to the benefits discussed above, a comprehensive plan can also help you:

-Maintain privacy about your estate

-Protect assets from creditors

-Create legacy plans for future generations

-Support charitable causes you value

-Ensure your wishes are clearly documented

Creating these protections isn't just about paperwork—it's about peace of mind. You've worked hard to build a life together, and you deserve the security of knowing your relationship and assets are protected, regardless of political changes.

Laws and politics may shift, but your love and commitment remain constant. Instead of waiting to see what happens, take control of your future by securing the legal protections you and your spouse deserve. Estate planning is a powerful way to safeguard your rights, your assets, your loved ones, and your relationship, no matter what the future holds.

Take Action to Protect Your Family

Don't wait for potential legal changes to put protections in place for your loved ones. As a Personal Family Lawyer® Firm, I can help you create a comprehensive Life & Legacy Plan that ensures your wishes are honored and your loved ones are protected, regardless of future legal developments. Your plan will include multiple layers of protection that go beyond marriage rights, giving you peace of mind about your future. Click here to schedule a complimentary 15-minute consultation and learn more:

This article is a service of Atty. Stuart Williams, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Life & Legacy Planning Session,Ⓡ during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.