5 Estate Planning Priorities For Same-Sex Couples

As National Pride Month winds down, I find myself admiring the enormous strides that the LGBTQ community has made in the past decade and the tenacity that these passionate advocates have shown to make sure they are afforded the same rights as people outside this community.

But now, as the month comes to an end, I want to see this community also make sure that – for the next 11 months – they spend some time taking a few key steps to help secure and protect their families’ financial futures.

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Since the U.S. Supreme Court ruled in 2015 that same-sex marriages were legal, the question of marriage for many same-sex couples has gone from “Why can’t we get married?” to “What date should we get married?” And we love to see it!

So, as you find yourself looking at venues, picking out a band, and choosing between chicken or fish, take some time to review (or establish!) the steps needed to obtain all of the benefits that were once reserved only for opposite-sex couples. There’s lots to consider. Start with five steps that will make so many other decisions easier for you and for your family:

Planning Considerations for Same-Sex Couples

Review existing estate plans: Couples should review their existing estate plans with an advisor to make sure their planning reflects their current wishes. Married couples have the benefit of the unlimited marital deduction, which means that they can gift during their lifetime or bequeath at death an unlimited amount of assets to their U.S. citizen surviving spouse without any gift or estate tax. But unmarried couples will have to engage in different estate planning techniques to pass the maximum amount they can to their partners without the imposition of those taxes. If an individual does not have a will, her state’s intestacy laws will typically provide for a minimum amount to pass to the surviving spouse, but if a couple is not married, the entire estate may pass away from the intended partner. Your estate planning attorney can advise you on all of the above, and help you understand where you stand.

READ MORE: 5 To-Dos To Put On Your Estate Planning Checklist

Create a living trust: A revocable living trust, which is a trust set up during your lifetime that may be changed or revoked at any time, can be used as an individual’s main dispositive document instead of a will. Unlike a will, the provisions of a revocable trust kick in not only at death, but it also can if the other partner is incapacitated (think Alzheimer’s Disease or stroke victims). This means that a living trust can provide financially for the trust creator, the creator’s partner, and their children during any period of incapacity. At death, the trust can have the same provisions that would be in a will, but while a will is a public document, trust provisions may be kept confidential. Chat with your partner about their preferences for a will vs. a trust, and make an appointment to meet with an attorney.

Update advanced directives: Couples should consider having advanced directives, including a health care proxy (which allows your partner to make medical decisions in the event you are unable to do so), a power of attorney (which allows one partner to handle the other’s financial affairs), a living will (which could show how far treatment should go if you or your partner were in a vegetative state), and a HIPPA privacy authorization form. Your attorney can help you prep these documents as well.

Update beneficiary designations: Couples should also periodically review and update their beneficiaries. If a partner passes away, an outdated or blank beneficiary designation could spell disaster for the surviving partner, resulting in an unintended beneficiary receiving the funds. Similarly, if an ex-partner was previously named as a beneficiary, that ex could inherit significant assets. While a surviving spouse may have some rights depending on the type of account, it’s best to keep beneficiary designations up to date. If it’s been a while since you checked in on yours, now’s the time to take a look and make some updates.

Protect the kids: Same-sex couples with children face unique estate planning challenges if only one parent is biologically related to the children. For unmarried couples with children who are biologically related to just one partner, or for couples who marry with existing children from prior unions, those children must be clearly identified in estate planning documents of both partners to provide for their financial future. No one wants to think about the “what ifs” but there’s so much peace of mind in knowing that everything will be taken care of exactly as you wanted after you’re gone.

The Bottom Line

All couples – same-sex or otherwise – should put a comprehensive estate plan in place that both parties feel good about. A lack of planning can have disastrous consequences for anyone, but the potential pitfalls are particularly rife for unmarried partners. While married same-sex couples can now leverage spousal benefits once just reserved for opposite-sex spouses, the steps I listed above are important for all. Your advisors can help you navigate complex issues, secure your financial future, and get back to important decisions – like where to go on that long-delayed honeymoon!

READ MORE:

• By the Numbers: Being LGBTQ+ In America,
• The Higher Lifetime Costs of the Queer Community
• Listen: HerMoney Podcast: LGBTQ Money Matters

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