Thanks to the Supreme Court’s decision in Obergefell v. Hodges (2015), same-sex marriages now enjoy the same legal rights as heterosexual marriages in the United States. However, as same-sex couples still face unique estate planning issues, attorneys should be wary of assuming they can plan for them in the same way as their heterosexual counterparts.
While more Americans support gay marriage today than ever before, a Pew Research Survey shows that 4 in 10 LGBTQ adults have been rejected by a close family member or friend due to their sexual orientation. Unsurprisingly, same-sex couple’s estate plans tend to be more vulnerable to sabotage by unsupportive family members. Whether that means having their wills contested because a family member may not recognize the validity of their relationship; custody battles over non-biological children in the event of the biological parent’s death or incapacity; or family attempts to limit a spouse’s ability to make medical decisions for their partner.
A state’s intestacy laws may also pose a problem for same-sex couples. Should an individual die without an estate plan, the surviving spouse may only be entitled to a portion of the decedent’s assets—leaving the rest to be inherited by unsupportive blood relatives. In order to protect same-sex clients from these circumstances, below are a few estate planning tools to consider implementing into your estate planning strategies:
- Choosing a trust over a will. Trusts offer superior asset protection to wills, especially when an LGBTQ couple’s relationship is not supported by one or both of their families. In these cases, the families may be more likely to contest a will when it goes to probate, thus jeopardizing the surviving spouse’s inheritance. During the interview process, consider asking about a client’s familial relationships to determine if a trust is needed.
- Adding particular language to LGBTQ couple’s wills. If a trust is not a viable option, then consider adding particular language into your client’s will that discusses why he or she is leaving their estate to their spouse and not their family. Spelling out the reasoning behind a testator's wishes (Jane Doe loved her family but chooses to leave her estate to _____ because _____), gives the family less room to contest it later during probate.
- Leaving a paper trail. Encourage your same-sex clients to keep a paper trail of their old estate planning documents. Should their will later be contested, it’s more difficult to prove fraud or undue influence if several documents demonstrate a consistency of the testator's wishes regarding their spouse and their inheritance.
- Encouraging clients with children to consider second adoption. Often, when children are present in same-sex marriages, one spouse will be biological and the other will not. Custody issues can arise should the biologically related spouse die, since some states may not recognize a legal relationship between the non-biological parent and the child. If the state in which the couple resides allows for second-parent adoption, consider advising your clients to do so, as it would legally recognize the non-biological parent’s rights to the child.
- Advising non-married couples of the legal benefits of marriage. The legal benefits of the Obergefell ruling are limited only to couples who are legally married. While many couples may still be wary of legally tying the knot (for whatever reason), it’s important to advise them that without a marriage license, they can be more vulnerable to:
- A state's intestacy laws.
- Statutes dictating enumerated appointees that get to make end-of-life decisions for a person.
- Statutes mandating guardianship appointees.
In these cases, a marriage license and other estate planning documents such as wills and health care powers of attorney can help make sure that a same-sex couple’s wishes regarding their spouse’s right over the inheritance of their estate, right to make end-of-life decisions for their spouse, and guardianship rights are honored.
Wealth Docx® provides drafting options for same-sex couples. With intelligent automation that is also easily customizable, it contains options to identify the client and spouse, determine the gender and term of reference preferred by the user, and allows for the inclusion of the same-sex spouse as fiduciary and beneficiary.
If you’re ready to get the help you need and take your practice to the next level, schedule a demo with one of our staff—discuss pricing and learn how WealthCounsel can meet your practice’s particular needs.