Estate Planning for Same-Sex Couples

Estate Planning for Same-Sex Couples

June 08, 2021

Although same-sex couples have been able to legally marry in the U.S. since 2015, when it comes to estate planning, there are still some unique considerations same-sex couples may need to take into account.[1] And given that not all relationships end in marriage, your significant other may be unable to inherit from you or even manage your shared expenses if you don't prepare some formal legal documentation. Learn more about some steps you can take and decisions you'll need to make when planning your estate as part of a same-sex couple.

Carry Out Your Desires With a Will

Having a valid last will and testament in place will ensure that your assets are passed along according to your wishes.[2] If you pass away without a will in place, your assets will transfer according to the intestacy statutes in your state—which, in many states, can mean your assets may go to parents or even adult siblings instead of your partner or non-biological/adoptive child.[3] By clearly setting out your funeral wishes, who you'd like to inherit your assets, and who you'd like to serve as guardian of any children (if both you and their other parent pass away), you'll reduce the risk of a postmortem estate battle.

End-of-Life Care Decisions

Another important part of LGBT estate planning involves who you'd like to make financial and medical decisions on your behalf if you're incapacitated. The 2005 battle between Terry Schiavo's estranged husband and her parents illustrated well what can happen if you're suddenly unable to make decisions on your behalf and have more than one family member fighting for the right to make these decisions. By clearly outlining what measures you would like to be taken on your behalf if you're incapacitated—and who you'd like to make them—you'll leave your loved ones prepared to carry out your wishes, regardless of whether they agree with them.[4]

Protecting Against Sabotage

The hostility of some unsupportive family members toward the surviving partner of a same-sex couple could make the estate more vulnerable to legal challenges or even sabotage. These family members could contest a will, engage in a custody battle, or attempt to take charge of medical and financial decisions if your partner is incapacitated.[5] This is one of many reasons why it's important to seek legal advice when drafting your estate planning documents. Although there are online forms and templates available, these tend to be one-size-fits-all. The more tamper-proof your estate planning documents are, the less likely it is that you or your partner will need to deal with outside stressors during an already-fraught time.

Important Disclosures:

All information is believed to be from reliable sources; however LPL Financial makes no representation as to its completeness or accuracy.

This information is not intended to be a substitute for individualized legal advice. Please consult your legal advisor regarding your specific situation.

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