Estate Planning for Same-Sex Couples

Same-sex marriage has been legal — and recognized throughout the nation under federal law — since the US Supreme Court decision in Obergefell v. Hodges (2015). This decision made it clear that same-sex partners who marry have the same rights as heterosexual couples in relation to any and all estate planning matters, including the ability to inherit assets through the laws of intestate succession, access to federal benefits, marital deductions for gift taxes, and much more. However, for same-sex couples who were in partnerships with their now-spouses for years or longer before same-sex marriage became legal in Georgia, there may be a range of shared property and other legal issues that will need to be addressed with your estate planning lawyer. Our Gwinnett County estate planning attorneys have significant experience representing Georgia residents in all aspects of estate planning, and we can speak with you today about your specific needs.

In the meantime, consider the following information that can help same-sex or LGBTQIA+ couples begin to think about legal issues that they may need to address in the estate planning process.

Property Acquired Prior to the Marriage

Same-sex married couples in Gwinnett County who were only able to marry in Georgia with the Obergefell ruling in 2015 may have been in long-term relationships prior to that date and thus may share various forms of property. Given that marriage was not a possibility prior to 2015 for same-sex couples in Georgia, however, it may be that certain shared property is only titled in one of the spouse’s names, or may have been purchased on its face by one of the spouses.

It will be essential to attend to any property concerns such as these by ensuring that each spouse leaves all shared assets to the other spouse through a revocable living trust or a will.

Planning In Case of the (Unlikely) Possibility of Revoked Protections

While Obergefell has now been law for more than a decade, there are numerous politicians and lawmakers who have voiced a desire to undo the protections granted by Obergefell. It is not that you and your spouse should assume that this will happen, but you should make sure that you are protected in the event that protections for same-sex couples become limited in the future. Consider the following, for example:

Both spouses creating a Georgia Advance Directive for Health Care and naming the other as their health care agent (in the health care power of attorney portion) to ensure that each can make significant health care decisions on the other’s behalf in the event of incapacity;
Account for all property and its distribution, whether through a revocable living trust or a will;
Consider establishing other types of trusts, as needed, based on your family and financial circumstances; and
Create a durable power of attorney that gives the other spouse the authority to make financial decisions and to handle financial matters;
Designate your spouse as a payable-on-death beneficiary or other beneficiary on bank accounts, pensions, life insurance, and more.

You and your spouse should also be sure to take advantage of gift tax marital deductions for spouses.

Contact a Norcross Estate Planning Attorney for Assistance

Depending on your specific circumstances, there may be other important issues to address such as children from your relationship and complex family dynamics. An experienced Norcross estate planning lawyer at Bowman Law Firm can speak with you today about all of your estate planning needs.

Sources:

https://law.justia.com/codes/georgia/title-53/