Estate planning for same-sex couples – an ever-changing area of ​​the law

Estate planning for same-sex couples – an ever-changing area of ​​the law

A hot legal topic these days is whether same-sex couples should be allowed to marry. It seems like every new day brings a new court case, legislative action, or people’s vote on the issue. Rights that “straight” couples take for granted — the right to inherit a spouse’s property, the right to make medical decisions when loved ones cannot, the ability to handle financial matters when a partner is incapacitated — are in flux for gay couples . Some states have fully approved gay marriage through legislation or court ruling; others have banned gay marriage through legislation or a referendum vote. In states that do not allow same-sex couples to marry, there is a mix of laws that may allow recognition of same-sex “significant others” in some areas but not others; and even in the most negative locales, there are laws that same-sex couples can use to protect themselves and their loved ones.

In my humble legal opinion, if we interpret the US Constitution fairly, the government (“state action”) cannot deny basic civil liberties (eg, the right to marry) to a “suspect class” (the constitutional law term for a class of people who have historically been discriminated against, which also includes women, minorities, people with disabilities, and many other groups). On the other hand, religious institutions, to which the Constitution does not apply, can do whatever they want and refuse marriage to same-sex couples. But the government simply cannot discriminate.

I have high hopes that this legal quagmire will be resolved in favor of gay couples in the near future, and that gay couples will be given the same rights – and responsibilities – that heterosexual couples have always had. (And as a result, the world will not end, as some artists claim.) However, until this is finally and uniformly resolved, it is imperative that same-sex couples take precautions to ensure that they and their loved ones are protected in case of disaster. In my law practice, I’ve seen cases where the survivor of a gay couple was pushed out when the family showed up and took the decedent’s assets — because the deceased didn’t have a will. I have seen episodes where one partner could not help make a medical decision for the ill partner because they did not have a health care power of attorney or a medical power of attorney. I have seen guardianship proceedings that have resulted in a bitter battle between the incapacitated person’s family and the longtime lover over who is best suited to make decisions.

Not only is it important to protect yourself from these indecent scenarios, protecting yourself and your partner is even more important now that laws regarding same-sex couples are changing. What is the effect of a gay couple’s marriage if they move or live in another country? What is the effect of being on a register of local partnerships? Which countries have what rights and protections? What if you get divorced? What if there are children involved?

Quite simply, same-sex couples can avoid these problems by planning ahead with the right professional. A properly prepared and executed will naming heirs speaks volumes to the court system, including how children should be treated. Properly executed advance directives—powers of attorney, health care powers of attorney, living wills, and medical powers of attorney—avoid the messy scenarios described above. These legal documents – which should be part of every individual’s estate plan – should be drafted by an attorney who practices in this area of ​​law, someone who can ensure that your wishes are carried out, especially since this area of the law remains in motion.

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