Same-sex couples have to deal with all of the estate planning issues that straight couples face, but they may also encounter a few extra issues. This makes solid estate planning especially important.
Marriage and Children
Since 2015, same-sex marriage has been legally recognized throughout the country. This prompted many same-sex couples to get married. In some cases, marriage may have happened automatically. According to the National Conference of State Legislatures, five states converted all civil unions into marriage following the U.S. Supreme Court decision.
However, compared to opposite-sex couples, same-sex couples are still more likely to be unmarried. According to the U.S. Census Bureau, 88.3% of opposite-sex household couples are married, while only 58% of same-sex household couples are married.
Same-sex couples are also less likely to have children. According to the U.S. Census Bureau, only 14.7% of same-sex couples have children, compared to 37.8% of opposite-sex couples.
These trends have significant implications for estate planning. When a person dies intestate, or without a will, state law determines what happens to the estate. In Oregon, the laws of intestate succession give inheritance rights to the surviving spouse and descendants. If there is no spouse or descendant, the estate may pass to other family members, such as the parents or siblings. As a result, whether or not a person is married or has children in the eyes of the law can make a big difference.
The Potential for Family Disputes
Probate can bring out the worst in some families. If family members disagree on how an estate should be distributed, lengthy court battles can ensue. For same-sex couples, the tendency to stay unmarried may contribute to disputes. If family members object to the relationship, things may get especially ugly.
If children are involved, the situation may also become complicated. For example, what if a couple has a child that is not biologically related to the surviving partner? If there was no legal marriage or adoption in place, will the surviving partner win custody of the child? These are important questions that should be considered in advance.
Important Estate Planning Documents for Same-Sex Couples
Given the potential for issues, same-sex couples should review their estate plans carefully. Here are a few issues to consider:
- Incapacity Planning: If one partner is incapacitated, will the other partner be permitted to make medical and financial decisions? An Advance Directive can help ensure that your wishes are carried out.
- Wills and Trusts: These estate planning tools are key to determining what happens to your estate.
- Beneficiary Designations and Titles: Check important documents – such as insurance policies, retirement accounts and real estate holdings – to make sure that they are set up according to your wishes.
- Guardianship: If you have minor children, name a guardian in your will. Also consider setting up a trust.
An experienced estate planning attorney can help with your same-sex estate planning needs. Need help? Contact Skinner Law.