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Unique estate planning considerations for same-sex couples

| May 18, 2022 | Estate Planning & Elder Law

Same-sex couples may face challenges when it comes to estate planning.

With the landmark 2015 Supreme Court decision in the case of Obergefell v. Hodges, same-sex couples across the country were granted the right to marry (the case struck down previous state-level bans on gay marriage). Though the case was decided by the Court on the basis of the Equal Protection of the fundamental right of marriage, this doesn’t mean that same-sex couples are now treated completely equally for practical purposes. This also doesn’t mean that they don’t still have unique legal challenges, namely in the family law and estate planning arenas.

Unique concerns when there isn’t an estate plan

For same-sex couples who have tied the proverbial knot, some of their previous estate planning concerns have been addressed. These couples should now be treated equally under the law for succession purposes. The spousal share designated in the state’s intestacy laws should go to the surviving spouse if there is no formal estate plan on record.

If the same-sex couple hasn’t wed, gone through a civil union or registered as a domestic partnership, then intestacy laws dictate that the surviving partner doesn’t have legal inheritance rights, even if the relationship had lasted years or decades. He or she will still receive property where beneficiary designations dictate (like insurance policies, investment accounts, etc.), but the remaining estate will be distributed according to Virginia’s intestacy laws, going instead to surviving children and biological relatives.

Without an estate plan in place, the guardianship of a same-sex couple’s minor children could also be an issue following the death of one spouse or partner, particularly if that spouse was the only biological parent of the child and the child hadn’t been formally adopted by the surviving spouse. This could happen even if the couple had raised the child together for years.

The benefits of an estate plan for both married and non-married same-sex couples

Many couples nowadays, regardless of sexual preference, choose not to marry. That is, of course, their prerogative, but those couples may run into legal difficulties when one of them becomes ill or incapacitated. Even long-time partners who aren’t married have no legal right to make healthcare or financial decisions on behalf of the other in the event of illness or incapacity. For that, a power of attorney and healthcare directive would be necessary. These are good to include in any estate plan, but they are critical when no marriage has taken place. Otherwise other family members or a state-appointed conservator will make important decisions that could actually go against your beloved’s expressed wishes.

Even though same-sex marriages are now recognized across America, it will likely take a while before all the remaining legal issues once associated with prohibiting them are resolved. In the meantime, it is prudent to ensure that your estate plan provides for your loved ones after you are gone. For more information about comprehensive estate planning, speak with the skilled estate planning attorneys at Barnes & Diehl, P.C. Call the firm at 800-626-9310 or contact us here.