With marriage equality, same-gender couples no longer have to pay exorbitant amounts of money for creative estate-planning work-arounds just to achieve similar protections offered to opposite-gender couples. Yet same-gender couples continue to face unique planning challenges.
Because you may have family members who remain opposed to the validity of your marriage, same-gender couples’ estate plans are often more vulnerable to dispute and even sabotage by unsupportive relatives. This could mean that family members are more likely to contest your wishes, or it might entail custody battles over non-biological children in the event of the biological parent’s death.
Unsupportive family members may even try to block the ability of your spouse to make medical decisions on your behalf should you become incapacitated by accident or illness.
While the planning vehicles available to same-gender and opposite-gender married couples are generally the same, there are a few unique considerations those in same-gender marriages ought to be aware of. Here are three of the most important things to keep in mind.
Relying solely on a will is risky: For a number of reasons, putting a trust in place—rather than relying solely on will—is a good planning strategy for nearly everyone. Upon the death of one spouse, a will is required to go through the often long, costly, and conflict-ridden court process known as probate. However, assets passed through a trust pass directly to the named beneficiaries without the need for probate.
If your relationship is not supported by one or both families, avoiding probate is especially important. If a family member doesn’t support same-gender marriage, they’re more likely to contest your will during probate, especially if that family member would’ve received a substantially larger inheritance in a previous will prepared before the marriage or if the marriage didn't exist.
Even if the contest ultimately fails, the process of defending the will’s validity in court can be extremely time-consuming, costly, and emotionally draining for your surviving spouse. What’s more, a trust works in cases of both your death and incapacity, while a will only goes into effect upon death. Given these reasons, it’s best for those in both same-gender and opposite-gender marriages to create both a will and trust. There is just no comparison.
Don’t neglect to plan for incapacity: Estate planning is not just about planning for your death; it’s also about planning for your potential incapacity. Should you be incapacitated by illness or injury, it’s not guaranteed that your spouse would have the ultimate legal authority to make key decisions about your medical treatment and finances. Neither a hospital nor a bank will assume your spouse or family member has your best interest at heart, and automatically give them the benefit of the doubt. 🤯
Absent a plan for incapacity, it’s left to the court to appoint the person who will make these decisions for you. Though spouses are typically given priority, this isn’t always the case, especially if unsupportive family members challenge the issue in court, not to mention the cost and delay it causes in urgent health situations. To ensure your spouse has the authority to make decisions for you, you must grant them medical power of attorney and financial power of attorney - no matter what.
Medical power of attorney gives your spouse the authority to make health-care decisions for you if you’re incapacitated and unable to do so yourself, and know exactly how you want your medical care managed in the event of your incapacity. By the same token, financial power of attorney gives your spouse the authority to manage your financial affairs.
Ensure parental rights are protected: While the biological parent of a child in a same-gender marriage is of course automatically granted parental rights, the non-biological spouse/parent often fears legal complications. Because the Supreme Court has yet to rule on the parental rights of non-biological spouses/parents in a same-gender marriage, there is a tangled, often-contradictory, web of state laws governing such rights. Even more frustrating is that attorneys do not all agree on one legal course of action (such as second-parent adoption).
To ensure the full rights of a non-biological parent, many legal experts will advise same-gender couples to undergo second-parent adoption. But in many states, it can be extremely difficult for same-gender couples to adopt—some states even permit employees of state-licensed adoption agencies to refuse to grant an adoption if doing so violates their religious beliefs. Like we are all living in the dark ages. 🙄
However, using a variety of unique planning strategies, your Personal Family Lawyer® can provide non-biological, same-gender parents with nearly all parental rights without going through adoption. Using our Guardian Guide in combination with the will, couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes.
In this way, if the biological parent becomes incapacitated or dies, his or her wishes are clearly stated, so the court can do what the parent would’ve wanted and keep the child in the non-biological parent’s care.
Beyond that, there are several other planning tools we can use to offer the non-biological parent additional rights. One such tool is a co-parenting agreement. This is a legally binding arrangement that stipulates exactly how the child will be raised, what responsibility each spouse has toward the child, and what kind of rights would exist if the couple splits or goes through a divorce.
You can begin by contacting Sarah today to schedule a Family Wealth Planning Session.