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Estate Planning Concerns for Same-Sex Couples

When the United States Supreme Court legalized same-sex marriage, it opened up a lot of doors that had been closed to many people in society. However, it also created a significant amount of new legal concerns for same-sex couples. With marriage, a host of new questions and responsibilities have arisen. Not the least of those concerns is responsible, comprehensive estate planning. While comprehensive estate planning is crucial for all individuals regardless of their marital status or sexual orientation, it is an extremely important consideration for same-sex couples that may not have had an estate plan in place.

Potential Issues

An article from the Cleveland Jewish News points out that same-sex couples – especially unmarried same-sex couples – could still face a host of legal hurdles when it comes to the death of one person in the relationship. These concerns could include issues involving health care and power of attorney, which make it extremely important for unmarried couples to make sure documents addressing these concerns are in place should they be needed. Without these documents, there may be laws in place prohibiting an unmarried same-sex partner from making important financial and health-related decisions if an individual becomes incapacitated or otherwise unable to make such decisions on their own.

Same-sex parents also have some unique concerns when it comes to estate planning. Depending on the dynamics of the family, there could be serious custody issues that arise if one or both same-sex parents passes away. It is important to have a strong, comprehensive plan in place to address these issues, especially if the children are from a previous marriage. If same-sex parents share children and one of the parents has not adopted them, that could also raise potential issues.

Perhaps an overlooked but nonetheless important concern involves finances and other inheritance issues. These are especially important concerns if same-sex partners have been married before or are part of a blended family in some way. Making sure that you have specified what assets you wish to leave to a same-sex partner or spouse could help avoid any potential issues in the execution of your estate plan, and can help you make sure that your spouse or partner is financially taken care of should you pass away.

Things to Remember

Inheritances and other estate planning concerns are not always addressed automatically. There is not always a mechanism in place that recognizes a same-sex partner, especially outside of marriage. While more and more same-sex couples are getting married, a significant number have decided not to and that could spell trouble for them and their estate planning goals down the line unless they are proactive about recognizing and addressing potential issues. Working with an experienced estate planning attorney is important for everyone, and same-sex couples are no exception. As with all aspects of estate planning, clear communication is crucial to the success of an estate plan. This is true for all couples, including married and unmarried same-sex couples. Making sure your partner or spouse, as well as other members of your family, understand your wishes and the provisions of your estate plan can help make sure that your estate planning goals are met at every stage.   

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