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Estate Planning for LGBTQ Couples Isn’t Always Cut & Dried. Here Are 5 Things You Should Know

Same-sex marriage may now be legally accepted, but that doesn’t mean there aren’t hurdles—particularly when it comes to legally protecting your family and future generations. Many believe all the issues have been resolved thanks to the 2015 ruling that legalized same-sex marriage, but this is not the case for everyone.

If you are growing your family and wondering what is or isn’t covered by default with your marriage, read on for a few things to keep in mind as you’re preparing your estate plan.

1. If you were in a legal union before the legalization of same-sex marriage, you may need an update

Before same-sex marriage became federally legal, many life partners opted to enter a legal union to ensure both parties had the necessary access and rights. Because laws have changed regarding marriage, the verbiage in your legal union or estate planning documents may need to be updated to match your new married status (wife/husband/spouse).

While marriage does provide some pretty important benefits that were restricted previously, not all rights will transfer to your spouse by default when you say, “I do.”

Additionally, if you entered into a domestic partnership agreement and then parted ways, it’s important to check in with the laws of the state you made the agreement in. Washington state, for instance, automatically upgraded all domestic partnerships to be the same as marriage—meaning you could be married to a past partner and not even know it. Not only would this complicate matters should you want to marry a new partner, it could also mean your ex has claims to your estate.

2. Marriage is not necessarily an all-access pass

While marriage does provide some pretty important benefits that were previously restricted, not all rights will transfer to your spouse by default when you say, “I do.” In fact, there are certain areas where spouses aren’t automatically given rights, such as retirement accounts. For instance, if an IRA or 401(k) account was opened by your spouse prior to your marriage, they will need to elect you as their beneficiary through their retirement account provider.

Another common misconception is that spouses are allowed to make certain medical decisions by default—in fact, many of the arguments made for gay marriage used medical rights as an example. The truth is, gay and straight spouses need additional legal documentation to grant their partner rights to make medical decisions or else decisions can be questioned by other family members.

3. Understand the monetary pros & cons

Before marriage was an option, same-sex couples could bequeath any portion of their estate to each other without limitation, whether it be giving a partner 10% and leaving the rest to their children, leaving their partner nearly all of their estate, or leaving them nothing. Once married, however, federal law dictates that the surviving spouse is entitled to around one third or more of their spouse’s estate (depending on where you live). This may not be a con to some, but lack of flexibility in terms of percentage can be problematic for some couples who wish to further divide up their assets.

On the other hand, married same-sex couples were granted the ability to pass assets between a deceased spouse and living spouse without federal estate taxes, which can add up to large cost savings compared to non-married couples. Married couples can also gift each other an unlimited amount of assets or property without having to pay the federal estate and gift tax.

4. You should still adopt your child if you aren’t the biological parent

When it comes to growing your family with children, same-sex couples nearly always have more legal details to manage. If one partner is the biological parent, marriage does not automatically grant you custody of your child—thus it is still strongly recommended that you adopt the child to establish a legal relationship and avoid issues should something happen to your spouse.

Not only that, but you may want to consider filing for adoption before you say your vows—if your state allows it. That’s because you will only be eligible to claim the adoption tax credit before you get married. While monetary motivations shouldn’t take center stage when considering adoption, children are expensive, and the adoption credit can be very helpful to your family. It’s important to note that here in North Carolina, you cannot file for adoption prior to your marriage.

5. An estate planning attorney can help make sure your bases are covered

Regardless of your sexual orientation, net worth, or whether or not you have children, estate planning can be complex—and online DIY estate planning tools often provide insufficient coverage and zero ongoing maintenance. Planning for your family’s future is one of the most important things you can do, and an experienced estate planning attorney can make sure you’re doing it right.

Not only will your attorney help determine what documents are a necessity for your circumstances, they will also help you stay on top of your estate plan through big and small life changes to ensure nothing falls through the cracks.

If you’re trying to navigate estate planning in Asheville, we would love to help you get started with a private consultation!

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