Estate planning for LGBT couples is certainly one of the many financial decisions impacted by the long-awaited legalization of same-sex marriage. Prior to the 2015 Obergefell vs. Hodges Supreme Court decision, same-sex couples were unable to withold many of the same legal securities that heterosexual couples were guaranteed. However, even now, after same-sex marriage has become recognized by the state, the process of many of these legal instances, such as LGBT estate planning, can be different, and it’s important to understand the steps necessary when considering a financial plan for the future.

The Importance of Wills

For LGBTQ+ couples who are married or in a domestic partnership, the importance of a will can ease many financial uncertainties. The intestacy laws of most state statutes rarely include a domestic partner, and without a proper will, they will be disinherited from any assets regardless of intentions.

For married couples who don’t want to jeopardize their spouse’s inheritance, a trust may be a good option. Establishing a trust offers exceptional asset protections to wills, especially when they are contested. However, if a trust is likely unobtainable, individuals can create a “no contest” clause in their will that explains why they are leaving certain assets to a spouse instead of their family.

Legally Naming Partner or Spouse

While a will is an essential part for any estate planning, same-sex spouses tend to have a greater challenge when making financial or medical decisions for partners who are incapacitated or unable to communicate. Fortunately, many estate planning documents exist to allow for an individual to grant authority to a partner or spouse, to make financial or medical decisions for them in these cases. Some of these documents include:

  • Durable financial power of attorney – designates a person to handle financial affairs if you are to become incapacitated.
  • Healthcare power of attorney – allows for someone to make medical decisions on your behalf if you are to become incapacitated. This is particularly important for unmarried couples who are in domestic partnerships or relationships.
  • HIPAA privacy authorization form – these forms allow doctors and other health care professionals to disclose pertinent health information to a health care power of attorney.

Understanding the Unlimited Marital Deduction

The legalization of same-sex marriage allowed for same-sex couples to enjoy the unlimited marital deduction for federal estate and gift taxes. What this means, essentially, is that gay and lesbian couples can now generally leave an unlimited amount of assets to their spouses without triggering a federal estate tax. They can also now roll over assets from a deceased spouse’s retirement account to their own without a mandatory distribution. By utilizing these marital deductions and roll-over assets, same-sex couples can free up considerable liquidity.

Appointing Guardianship For Children

It is not uncommon for courts to make decisions about guardianship for children, and many times the spouse’s family of origin or another biological parent will be given preference. For same-sex couples, it’s extremely important to formally nominate a spouse or partner as a legal guardian for a child, to avoid any complications about who is stepping in when that time comes.

Working With an Attorney For LGBT Estate Planning

To ensure that wishes are carried out during someone’s lifetime, and that assets will pass along in the manner in which they desire, working with an attorney or skilled professional can help any same-sex couple with estate planning. These LGBT wills and trusts attorneys work closely with individuals to make sure that all unique needs are addressed.

Walser & Herman Law

Walser & Herman Law has been helping diverse families throughout Florida with estate planning and probate services for more than three decades. We understand the positive impact these laws have on the LGBT community in Boca Raton, Palm Beach, and throughout the State of Florida, and applaud the recognition of these important LGBT rights, including estate planning.

The Walser & Herman Law Firm fully supports LGBT rights. Our attorneys protect the rights of same-sex couples through crucial estate and life planning tools. Our estate planning services for LGBT couples include writing a will, drafting a living will and power of attorney, addressing guardianship, and many others. If you or someone you know wishes to take the right steps in estate planning, feel free to learn more about our exceptional services or contact us today.