Estate Planning Considerations for Same-Sex Couples

In 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage, granting same-sex couples the same legal rights as opposite-sex couples. As a result, same-sex couples now enjoy many protections they previously lacked, particularly in areas like estate planning. If you’re in a same-sex marriage or relationship, it’s crucial to understand these new rights and ensure your estate plan reflects your wishes.

1. Review Your Estate Planning Documents

Whether you’re in a same-sex or opposite-sex marriage, regularly reviewing your estate planning documents is essential. Married couples benefit from being able to transfer assets to their spouse at death without incurring estate taxes, something unmarried couples cannot do. Additionally, unmarried couples in Michigan do not have automatic survivor rights, which makes proper estate planning even more important to avoid legal complications.

2. Consider Establishing a Trust

A revocable living trust is a valuable tool for protecting your assets and ensuring your wishes are honored. Unlike a will, which only takes effect after death, a revocable trust can be used during your lifetime, especially in cases of incapacity. This means your spouse or chosen family members can manage your affairs if you’re unable to. Another advantage of trusts is that they remain private, unlike wills, which become public record. Additionally, trusts can help avoid probate and prevent challenges from other family members. Choosing a neutral trustee is vital to prevent potential conflicts.

3. Update Your Advanced Directives

Advanced directives, such as a health care proxy, power of attorney, living will, and HIPAA privacy authorization, are essential for both same-sex and opposite-sex couples. These documents grant your partner the legal authority to make medical and financial decisions on your behalf. Without them, unmarried partners may face challenges in accessing their significant other’s medical information or making critical decisions.

4. Update Your Beneficiary Designations

Keeping your beneficiary designations updated is an often-overlooked but critical part of estate planning. Life changes, such as marriage, divorce, or the birth of a child, do not automatically update these designations. To ensure that your assets go to the right people, review and update your beneficiaries regularly, especially after significant life events.

5. Protect Your Children

Estate planning is particularly important for same-sex couples with children, whether through adoption or biological relation. If you and your spouse have children from previous relationships, adopted children, or if one parent is a non-biological parent, ensure they are clearly named in your estate planning documents. This prevents custody disputes and ensures your children are cared for if something happens to you. In some cases, a non-biological parent may consider legal adoption to secure parental rights and avoid future custody challenges.

Why Proper Estate Planning is Critical

Same-sex couples should be fully aware of the legal protections now available to them, and it’s essential to work with an attorney who can guide you through the estate planning process. With the right documents in place, you can ensure that your assets, spouse, and children are protected in case of incapacity or death. Don’t leave these critical matters to chance—consult an attorney to update your estate plan today.

For more insights, refer to Sharon L. Klein’s article, “June’s Tip: 5 Considerations for Same-Sex Couples,” on FamilyLawyerMagazine.com.