Estate Planning Issues for Same-Sex Couples

Same-sex couples face unique estate planning challenges. Because most states do not acknowledge same-sex unions or marriages, same-sex couples cannot benefit from their states statutory elective or forced share laws. In an opposite-sex marriage, most states have statutes that give surviving spouses the right to receive a minimum share of their deceased spouses estate. Thus, spouses of opposite genders who die without creating a will may be able to rely on their states elective or forced share statutes giving surviving spouse a statutory share of their estate. In a same-sex union, when one partner passes away, the surviving partner will receive nothing in most cases. In states that recognize same-sex unions, spouses usually have to first register their domestic partnerships to take advantage of their states same-sex laws. An unregistered domestic partner will usually receive nothing under a states intestacy statute if one partner dies intestate or without a Will.

If your state recognizes same-sex partnerships and you registered your partnership, your spouse will receive only a statutory intestate share if you didnt create a Will before you die. To make sure your same-sex partner receives a larger share, you need to create an estate plan, including a written Will. It is especially imperative for same-sex couples to see an estate planning attorney to help them create estate plans that will work for them. An estate planning attorney can help you avoid probate by creating a revocable living trust for your same-sex partner. This allows you to avoid some delays in probate by transferring the bulk of your assets to your same-sex partner.