Estate planning advice for Same-Sex Couples

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Estate planning advice for Same-Sex Couples

There are lots of estate planning options for same sex couple. Most notably, these options gives enough flexibility to cater for the couple’s needs and other engagement.

Since the confirmation of the legal union of same-sex marriages estate planning issues has continue to become a major challenge. Same se partners has had issues concerning protecting their assets and legal rights which is typically not a problem for opposite couples. Although there are a few laws backing same-sex marriages (specifically the Oberg fell v. Hodges), there is still a fear surrounding same-sex unions.

There may come a time when the rights of same-sex couples would become unprotected or completely nullified. This makes it clear to the fact that creating a sound and definite estate plan is very important. Estate planning documents for opposite-sex couple are the same available to same- sex couples. However, while creating these plans, several consideration must be in place. You should contact professional estate planning attorney to this effect.

Major estate planning considerations for same-sex marriage

Estate planning is vital, and the importance of this becomes heightened when one is married especially for same se couples. Each spouse should state what assets properties, debts he or she is bringing into the union. In addition, each spouse should effectively communicate their Short and long term financial goals to their partner. It is important that same sex couples decide whether or not they would adopt a number of children and also assets that would be left as inheritance.

The following statement should provide insights into estate planning for same-sex couples:

  • The spouse’s long and short term financial goals.
  • The amount of assets, real estate properties, investment each spouse own before the union. 
  • What each spouse decide to achieve with their investment and other estate properties.
  • Would a guardian be require for their adopted kids?
  • Would each spouse prefer to be named as a trustee?
  • What would happen if one of the spouse dies?

These and other important questions would be asked by the estate attorney. The importance of this is to determine the best estate plan document for a same-sex couple.

A flexible estate plan is required for same-sex couple

Estate planning should be such that it easily reflect both spouses’ needs and also provide room for improvement or amendment in the future. At certain times you or your spouse will want to adopt or raise children in the future, as such you should also develop a realistic and flexible estate plan that will give you the best life, secure your financial future and that of your adopted wards or children. As you continue to progress in your life, evaluate changes and how these changes would in turn affect your estate plan, and ensure that everything is up-to – date. An estate planning attorney will be vital to this process. It is important you know that the disposition of your assets without estate planning will be controlled by the intestate succession rule used for opposite-sex spouses and these laws differ across states. In most states, just like the New York, the intestate law hands over all or a significant portion of the deceased assets to the surviving spouse, and determining what exact portion to bestow on the surviving spouse becomes a problem.

Estate planning document for same-sex couple

There are a few estate planning options same-sex couple can explore and create to fit their plans.


A will is an important estate document. With this, couples can plan and decide how their property should be distributed when either of the spouses die. Each partner can decide whether to create to separate Will document or just go with a single plan. A will can also be used to specify or name a guardian for minor kids when the parent are no more.

Financial power of attorney

Same-sex couple should include this document into their estate plan to ensure optimal protection of their financial assets. A financial power of attorney allows you to decide who manages your assets or other financial property should you become unable to do so, perhaps due to any temporal or permanent incapacity. The chosen person would step into this role only when you become unable to handle your financial affair. This single can save you and your spouse loss of trouble and cost from a court supervised conservatorship.

Living trust

Living trust completely erases the downsides of a Will which is probate.  Probate is a court process of determining the authenticity of a Will or estate plan. However, the issue is with same-sex partnerships, avoiding probate becomes a little more difficult as the rules in most states do not allow the same-sex spouses to avoid probate easily. By forming a living trust, however, you can escape probate; transfer-on-death accounts, registration and deeds; or joint ownership. With these documents you may move your properties directly after your death to your same-sex partner without putting them through the hassle of probate.

Spendthrift trust

This is a special purpose trust that prevent financial loss in instances where either the trust maker or beneficiaries does not comply with the terms of trust. For instance, when a couple files for divorce, this trust protects the inheritance and shared assets. 

DISCLAIMER: The information provided in this blog is for informational purposes only and should not be considered legal advice. The content of this blog may not reflect the most current legal developments. No attorney-client relationship is formed by reading this blog or contacting Morgan Legal Group PLLP.

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