In 2015, the Supreme Court announced that state-level bans on same-sex marriage were unconstitutional. In other words, no matter where in the United States that you live, you have the same rights as any other couple.
The only hiccup is that some counties are denying licenses to same-sex couples. This means that same-sex couples wishing to marry in those places need to travel to a different part of the state to obtain a license. As a result, same-sex estate planning in certain states may be tricky.
Marriage means it’s time for you to start financial planning with both of you in mind.
Key benefits available to same-sex couples include Social Security, federal income taxes, employee health care benefits, retirement and pension plans, and federal estate and gift taxes. With these benefits comes the responsibility of estate planning.
When planning an estate, most people focus on:
- Organizing personal affairs
- Accumulating an estate
- Planning for orderly distribution of the estate (providing for a surviving spouse or other beneficiaries)
- Strategizing to pass the estate efficiently by planning for estate costs and taxes.
With proper planning and a good team of professionals working for you, this doesn’t have to be overwhelming.
Working With Professionals on Same-Sex Estate Planning
Same-sex estate planning can be complex. It depends primarily on four key factors: what you own, what you owe, where you live, and what you wish to happen after you pass.
Taking advantage of industry professionals will help immensely. Your estate planning team should include:
- You and your partner
- A financial professional, such as a Certified Financial Planner
- Your accountant
- An estate planning attorney
Ideally, a financial professional should work in unison with both an accountant and an estate planning attorney to offer appropriate strategies.
An accountant is a professional whose business is to be on top of current tax laws, which are ever-changing. He or she can also help you calculate the value of your estate. The estate planning attorney can help you implement certain estate planning tools, such as a will or a trust.
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What to Include in Your Estate
People sometimes assume estate planning is only for the wealthy. However, the word “estate” simply refers to whatever you own, whether that’s a mansion worth millions or just your grandmother’s antique tea set. Everything you own is in your taxable estate, including:
- Property in your name
- Your interest in joint property
- Life insurance policies
- IRAs and other retirement plans
It’s also important to consider your final expenses when planning with your advisors. They can help reduce the size of your estate before assets pass to your beneficiaries (the people to whom you will leave your money). These expenses can include:
- Any outstanding debts
- Funeral bills
- Medical bills
- Probate expenses, including lawyer and executor fees
How to Distribute Property After Death
There are three ways that property can pass at your death:
1. Your Will
Property that you own in your own name does not automatically “know where to go” when you die. A proper will controls how and to whom this property transfers following your passing.
If you don’t have a will, certain state laws will dictate how this type of property will transfer.
Your interest in property that you own with someone as a “tenancy in common” also transfers according to the provisions in your will.
2. A Contract
A contract means that the property involves some sort of legal provision where you have a direct beneficiary to receive your wealth following your death. This is usually the case for any life insurance policies, annuities, or retirement plans. Your will has no control over the distribution of this type of property. That said, most life insurance policies allow you to change the beneficiary should you wish the death benefit go to a dependent rather than your spouse (or vice versa).
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3. Operation of Law
This means that the piece of property, such as a house or joint bank account, will automatically pass to a survivor. Do keep in mind that some laws vary by state.
It’s important to know not only what you have, but also how you own it. That way, you can understand how it will pass at your death.
You should periodically review any ownership documents you may have because your wishes may change after you create these forms.
What About Health and Financial Decision-Making?
When it comes to health and financial decision-making, there are two primary legal documents to familiarize yourself with: a health care directive and power of attorney.
A Health Care Directive
This is a written statement that provides direction on how certain medical decisions are to be made. It allows you to state your choices for certain health care measures, or to designate someone else to make those choices should you become unable to make them yourself. This primarily applies to instances of prolonged suffering, such as terminal illness or a coma.
A health care directive is a combination of a living will and a power of attorney for health care. In many states, a living will and a power of attorney for health care are combined into a single document.
Without valid health care directives wherein you and your partner name each other as your respective agents, you may not have control over medical decisions made concerning your partner in the event that he or she is unable to make those decisions on his or her own.
Power of Attorney
A power of attorney for health care is a document in which a person (principal) appoints someone to be their authorized agent for purposes of health care decisions. A power of attorney for health care is a more comprehensive and flexible document than a living will. It can cover any health care decision, not just terminal illness or end-of-life situations.
A power of attorney (POA) for property and finances is a document in which you can appoint someone to be your authorized decisions. It allows the agent or attorney-in-fact to manage the business and personal affairs of the principal.
These powers of attorney can include specific powers and/or general powers. For example, if you were to become incapacitated and your POA was durable, your partner could manage your personal affairs, including paying your bills, making gifts, and transferring assets.
You may need to draft these documents using specific statutory language. Some states may require a specific format or specific wording.
Make sure to work closely with your attorney.
Finally, make sure to carefully choose who you designate as having power of attorney; at a certain point, it becomes an irrevocable legal decision.
“A power of attorney is always going to be revocable up and until the person loses capacity,” says probate law attorney Amy Lorenz of the Jim Ross Law Group. “Once a person loses capacity, then they lose their ability to revoke any document, including a power of attorney, which may be in place at the time of the loss of the capacity occurs.”
Due to the long-lasting implications of providing another person with power of attorney, you’ll want to be absolutely certain that you trust this person to carry out your final wishes as it relates to your health.
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Married same-sex couples should not encounter any issues with real estate. However, unmarried partners might. Consider the following ideas if you’re not married, but want to own a home with your partner.
How you title your home is very important. If you and your partner title your home as “Joint Tenancy with Rights of Survivorship,” the survivor becomes 100 percent owner of the home if one of you dies.
If a home or other asset isn’t titled correctly, the effects can be devastating and unintended.
Your partner may not end up as the legal owner of the home. It’s important to speak with an attorney about how you should title your assets and how a trust can help in order to keep your decisions your own — even after you’re gone.
Attorney Advice on Same-Sex Estate Planning
Taking proactive steps in designating who will own your property after you’ve passed can ensure your larger assets go to the right hands after your death. Taking necessary legal measures, such as changing the name on the deed, can be an important step in providing for both your partner and any children you may have.
“If the real estate property was bought by a married couple together while they were married, the legal presumption is that upon the death of the first spouse, the survivor will inherit the entire property,” says New York estate planning attorney Katya Sverdlov.
When and How to Change Your Deed
“If the property was bought prior to marriage and is owned by only one of the spouses, then it makes sense to redo the deed as soon as possible,” Sverdlov adds. “The deed should be from one spouse to both and should include the language ‘joint tenancy with rights of survivorship’”
If you have children or other beneficiaries, from previous relationships, however, you may want to pursue other measures of ensuring an equal distribution of your estate. “If one of the spouses has children from another marriage, a joint tenancy completely disinherits the children. For those situations (and others where a simple transfer of ownership is not optimal), a trust may be much more useful,” Sverdlov says.
Demonstrating Joint Ownership of Your Home
Couples without a marriage license also need to be aware of potential gift tax issues if they “add” a partner to the title of a home.
If you and your partner own your home together and you both contribute to the carrying costs (including the mortgage), always pay the mortgage with two checks. For estate tax planning purposes, such an action can be very valuable. It will allow a surviving partner to prove his or her portion of ownership in the home, making the estate valuation of the first partner to die more equitable. This may also save costly estate tax dollars.
Another reason to pay the mortgage with two checks is so that partners can be prepared in case they separate.
Again, careful record keeping can provide valuable documentation.
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Here’s another idea if you are the sole owner of a home that you share with your partner:
Let’s say that, in the event of your death, you’d like your partner to continue living in the home, but you want your child or another heir to eventually own it. One way to do this is with a life estate in favor of your partner. Another way is through a trust that stipulates that your surviving partner can stay in the home for a designated number of years or until his or her death. At the time you stipulate, your heirs will be given ownership of the home.
Married same-sex couples are now privy to the same retirement plan benefits as heterosexual couples. However, if you aren’t legally married, then many benefits won’t be available. For example, while you can name your non-spouse partner as the beneficiary of your IRA or 401(k), this partner will not be eligible for favorable tax treatment in terms of distributions upon your death.
Would a Trust Be Useful?
Another reason to consider a trust is that it gives you control over how and when your beneficiaries receive your assets. Some people think of a trust as a document. I would like you to think of it as a container that holds money and other assets for your beneficiaries. You decide what you’re going to put into the trust, who gets its contents, and how it will be distributed.
You should draft a trust with an attorney who has experience dealing with estate planning and trusts. There can be gift and estate tax consequences to the various types of trusts used in estate planning.
Plus, not all trusts provide estate tax benefits. A revocable trust, for example, doesn’t provide any such benefits. However, a revocable trust does avoid probate expenses. An estate planning attorney can work with you to decide if a trust is an appropriate tool for your situation.
Additional reporting by Connor Beckett McInerney.
Natasha Cornelius is the content writer and social media manager for Quotacy, an online life insurance agency. Its aim is to make life insurance easy to understand and to help you get life insurance coverage to protect your loved ones. Get a term life insurance quote from Quotacy. No personal information required.
This article originally appeared on Quotacy.