The U.S. Supreme Court is set to decide in a matter of days, or even hours, whether the Constitution requires states to allow same-sex marriage. While many same-sex couples have been awaiting a decision, waiting may not be the best strategy. To gain control of life decisions and estate planning, same-sex couples should put their wishes in writing now without waiting for the Supreme Court decision.
A little background: The top court has heard arguments on cases brought by 15 same-sex couples in four states and is expected to issue their decision this month. If the court rules in favor of the plaintiffs, all states will have to recognize same-sex marriages. (Currently, 36 states do so.)
But don’t expect a ruling in favor of same-sex marriage to clear the muddy marital waters. When it comes to estate planning matters, the hodgepodge of rules that apply state-by-state to married couples, whether same-sex or opposite sex, will continue. Estate planning for same sex couples in Georgia should be something done sooner, rather than later.
Regardless of the Court’s decision, when it comes to same-sex estate planning matters, couples should be taking steps now to make their plan bullet-proof. By “bullet-proof” I mean designing an estate plan that addresses their specific wants and needs and keeps them in control. A couple’s own plan is always better than someone else’s and without an estate plan of their own, a couple is subject to the default rules of their state – not an attractive option.
One option to carefully consider: a revocable trust, which can be useful in distributing assets to the beneficiaries and allow heirs to avoid the time and expense involved in the probate process. Additionally, a revocable trust offers flexibility, allowing the couple to modify and update the plan as their circumstances change.
Another important consideration for same-sex couples is how they want the courts to treat their children. The same-sex couple with children has to be treated as a blended family. The question of parental rights must also be addressed. For instance, what happens to the rights of the biological parent who is not part of the couple? A same-sex partner who is not a biological parent should consider adopting the child to establish his or her rights.
If same-sex couples are not proactively planning, the courts in each state will be making the decisions for them. Bottom line: the default rules in most states are woefully inadequate and no one – either opposite sex or same-sex couples – should ever have to rely on default rules.
Planning will be especially critical for same-sex couples if the Supreme Court allows states to continue to have their own rules on who can marry; however, even if the high court decides in favor of same sex marriage, proactive planning is still essential to maintaining control of one’s life and assets.
It’s not unusual for legislation to affect the realm of estate planning. From tax implications to guardianship of children, an Atlanta estate planning attorney has to keep up with the ever-changing legal landscape. This is certainly true when it comes to estate planning for same-sex couples in Georgia.
The legal aspects of a same-sex relationship often fall under the category of contract law in states where these relationships are not legal. It can be complicated, and in order to protect your property and your relationship, it is highly recommended to work with an experienced estate planning attorney.
There are several issues which need to be clearly addressed. Keep in mind, too, that this is just an introduction, and there are many other considerations to make with your lawyer.
Powers of Attorney
If one partner was to fall ill, would the other be allowed to make medical decisions for him or her? If a medical power of attorney has not been created, then the answer is likely “no.” The decision-making role would go to a blood relative. The same is true of finances. In order for one partner to have control of the other’s finances during an illness or after death, a financial power of attorney needs to be in place.
Planning for Assets
While legally married couples have the protection of assets usually being passed directly to a spouse, same-sex couples do not typically enjoy these same considerations. That’s why it is important to make sure that you name your partner as your beneficiary when and where you can. Some possibilities include:
- Bank Accounts
- Life Insurance Policies
- Mutual Funds/Stock Portfolios
- Retirement Plans
Your estate planning attorney in Atlanta will have a comprehensive list of assets which should be considered when naming beneficiaries.
Estate and gift taxes are another area in which same-sex couples don’t have the same protections as those who are legally married. For example, legally-married spouses can gift their money and assets to their spouses without facing huge tax repercussions later. Inheritance taxes have received considerable attention as of late, but the fact is those who don’t have the protection of legal marriage are still going to pay more than others.
Your estate planning attorney in Atlanta can help create ways to limit the amount of taxes which would be expected after the death of one partner. This can be achieved through well-thought-out gifts, living trusts, and other means.
The fact of the matter is same-sex couples need to put time and effort into the estate planning process in order to ensure their partners receive what they are entitled to receive. While estate planning really should be done by all kinds of couples, there are some safeguards in place to protect those who are legally married, and these options are just not yet available to same-sex couples in Georgia. In the meantime, it just makes good sense to set up a meeting with a reputable attorney and add some peace of mind to your relationship. Our Marietta Georgia estate planning firm can help.