Estate Planning for Same-Sex Couples
June is Pride Month, a time to remember and honor the history of the LGBTQ+ community. It’s also a good time, if you are a member of that community, to think about the future—specifically, your estate plan.
Estate planning has always been important for same sex couples, who have traditionally lacked the legal protections of married heterosexual couples. Thanks to the 2015 Supreme Court case of Obergefell v. Hodges, same-sex couples were given the same right to marry as partners of the opposite sex. That right addressed some of the estate issues facing same-sex couples, but it did not eliminate them altogether.
It’s important for all couples to have an estate plan, but there are some unique issues that same-sex couples still face and for which they must plan. Let’s take a look.
Parental Rights and Children’s Inheritance Rights
With same-sex marriage legal throughout the United States, if you and your same-sex spouse fail to make a will, they can still inherit from you under state laws of intestate succession. That’s not ideal, because their share under the law may not match what you would have chosen to leave them through an estate plan if you had one. That said, it’s better than nothing.
If you were raising a child together, your lack of an estate plan could be a bigger problem if you have no biological or legal relationship with them. The child would have no automatic legal right to inherit from you without an estate plan, nor would they have the right to any government benefits that your legal child would have.
If the biological/legal parent is the one to die without a will, the surviving spouse or partner may have no legal right to continue parenting the child; a legal relative, such as a grandparent, aunt or uncle, could get guardianship. This could result in the child being torn away from the only surviving parent they know, after already having suffered the death of a parent. This trauma can be avoided by having a will that names the non-biological parent as the child’s guardian.
Advance Healthcare Directives
In theory, your spouse should be able to make health care decisions on your behalf if you are unable to make or communicate those decisions yourself. Even so, it is much better to have in place official documentation, such as advance healthcare directives, that hospital personnel are legally required to follow.
Advance healthcare directives allow you to designate a specific person to make medical decisions for you, as well to express your wishes for end of life care.
Prior Civil Unions
Prior to Obergefell, some states allowed same-sex marriages. Others allowed “domestic partnerships” or “civil unions,” which did not confer all the rights of a marriage. Some states “upgraded” those statuses to marriages after the law changed.
The upshot of this is that if you were in a nonmarital union and you and your then-partner never divorced, there exists a chance that you are still legally married to them. That would mean your current marriage is not valid; absent an estate plan that specifically names your current spouse, they may have no legal right to inherit from you. To add insult to injury, your ex just might be the one to claim your estate.
In order to create an estate plan that truly protects the one you love, ensure that any previous unions you were a part of are legally terminated and that that is documented. Then confirm your current marriage is legal and make a trust or will.
Beneficiary Designations
Some assets, certain bank and retirement accounts, pass not through a will or trust but directly to a designated beneficiary. In most states, if a spouse is the beneficiary, divorce revokes the beneficiary designation.
However, if you were in a previous relationship that ended without a divorce, and you did not change your beneficiary designations, your former partner might be legally entitled to a significant portion of your assets. There’s an easy fix; update your beneficiary designations on bank accounts, retirement and pension accounts, and life insurance. Your estate planning attorney can help you identify all assets with beneficiary designations, and most of those can be easily updated using a form from the administrator or financial institution.
Funeral Planning
In New Mexico, a deceased person’s next of kin (NOK) has the right to plan their funeral. If you are not married to your partner, NOK is likely your partner’s parent, child, or sibling. If you are legally a surviving spouse, you are the next of kin—but that still doesn’t guarantee that their parents or other relatives of the deceased won't stir up conflict.
If you and your partner want your funeral or memorial to reflect your wishes and values (not someone else’s), the best way to do that is to plan ahead. Under New Mexico law, you can authorize your own cremation and appoint someone to oversee the disposition of your remains. You can also pre-plan and pay for your funeral arrangements should you not wish to be cremated.
You should create a written directive with the name of your spouse or other person you want to handle your arrangements (designee) and have it properly notarized or witnessed. An estate planning attorney can help you. You should also write out your wishes regarding a funeral or memorial. While those preferences are not legally binding, seeing your wishes in writing may discourage family members from going against them.
Work with an Estate Planning Attorney Who is Sensitive to Your Needs
The bottom line is that having an estate plan designed for your unique needs and concerns will give you peace of mind now, and ensure that your wishes are honored later. To get started protecting your loved ones, contact The Law Offices of Dana M. Kyle, P.A. to schedule a consultation.
