Estate Planning in Orange County for Same Sex Couples
Same-sex partners run into similar estate planning issues as different-sex partners but can also find themselves in very different situations. All serious couples, whether they are married or unmarried, should create an estate plan to ensure their health care and final wishes are followed.
Same-sex couples often find themselves in different situations that require additional planning steps. That’s why same-sex couples must meet with an Orange County estate planning attorney.
Same-Sex Marital Complexities
All same-sex couples are aware of the 2015 Supreme Court decision that legalized same-sex marriage across the United States. They may not, however, be mindful that prior state laws may hold unintended and complicated consequences.
For example, a same-sex couple may have gotten married in a state that recognized their union long before the 2015 court decision. That couple may have then moved to a state that didn’t recognize their marriage.If that couple later broke up, they may get a divorce and not give a second thought about it.
However, they may still be legally married in the state where they first joined, and are still legally married across the entire nation. Some states even converted registered domestic partnerships or civil unions into legal marriages.
The complexities of how the definition and legality of same-sex marriage have changed can impact couples in ways they haven’t considered. Some couples, even though they broke off their relationship years ago, might actually still be married in the eyes of U.S. law. This means any subsequent marriages might be invalid.
Since most states transfer the assets of a deceased person to his or her spouse, things could get confusing very quickly.
Unmarried Same-Sex Couples
Unmarried same-sex couples run into their own issues. The U.S. legal system has a variety of benefits built-in for married couples. For example, upon one spouse’s death, the surviving spouse has access to social security benefits, immigration status, joint taxes, hospital visitation rights, inheritance rights, and so on.
Unmarried couples are not offered the same advantages. Without the appropriate estate plan, your partner may not get control of your assets but could be denied even visiting you in the hospital.
Unmarried same-sex couples may need to meet with an Orange County estate planning lawyer more so than married couples. Regardless of their marital status, same-sex couples face issues that same-sex couples may have never even considered.
Estate Planning Concerns for Same-Sex Partners
Create a Will
One of the first things people think of when considering an estate plan is drafting a will. Without a will, it’s not always clear where assets should go when one of the partners dies.
Most states will pass assets onto the surviving spouse. However, if the couple is unmarried, a probate judge makes the decision. Some state laws are strict enough that even a long-lasting and well-known partnership won’t be enough, and the state will pass to a family member.
Creating a will is the best way to designate a beneficiary legally – and it doesn’t matter if you are married to that person or not. It may be tempting to download a template to create a straightforward will, but it’s never that simple.
Because laws are constantly changing and vary from state to state, it’s easy to make mistakes on DIY wills. A single mistake could mean your wishes aren’t carried out the way you intended. Working with an estate planning lawyer in Orange County is the best way to ensure your will is exactly as it should be.
Beyond the Will
Another element of an estate plan that is crucial for same-sex couples is creating a power of attorney (POA). A POA gives a spouse or partner the ability to act on your behalf in certain situations.
POAs can get complicated as there are many different kinds of laws that vary from state to state. Some POAs allow the person you name to make financial decisions for you if you are incapacitated. Others, like a healthcare power of attorney, let the designated person to make critical medical decisions.
Same-sex spouses tend to get more scrutiny than heterosexual spouses when it comes to making medical decisions. That’s why same-sex couples might go beyond a healthcare POA and also create a living will. This directive documents your preferences about medical treatment.
It may also be worth talking to your estate planning attorney about setting up a trust. A trust is similar to a bank account that holds your assets. You can name your partner as the person in charge of that trust. If something happens to you, your partner will remain in control of whatever assets, property, or funds make up the trust.
The best part is that most trusts avoid probate court altogether, so a judge doesn’t get to make crucial decisions regarding your estate.
Think About the Children
In a heterosexual marriage, assets pass to the children after both parents pass away. Same-sex couples may not have it as easy. They may need to consider an adoption plan to ensure everything works as intended.
In many cases, one parent of a same-sex couple will be biologically related to the children. If something happens to the biological parents, assets may pass to the surviving spouse. When the surviving spouse passes, the estate may not go directly to the children since there is no biological connection. Check with your estate planning attorney about a confirmation adoption.
The other thing to consider is who will take care of the children if something happened to both of the parents. In most states, the children would be placed with relatives. If there was no legal adoption or provision, one spouse’s family might be eliminated from consideration. It’s best to decide who both partners want to look after their children if tragedy strikes. This decision can then be added to the will.
Talk to Your Family
Same-sex couples are more likely to be estranged from their families. While this is not always the case, it could cause trouble down the road.
Family members may contest the will or fight for custody of any children from the relationship. Unmarried couples may also find that family may not accept decisions and try to take over the estate in court.
It’s always wise to let family know that you are including your same-sex partner in your estate plan. Beyond that, it’s vital that you work with an estate planning lawyer who can make sure no one can disrupt your final wishes.