Legal planning for married same-sex couples

After the ruling issued on June 26, 2015, by the U.S. Supreme Court, marriage for gay and lesbian couples is now a possibility in all 50 states. Although Illinois has had marriage equality since 2014, the Court's ruling in the marriage equality case Obergefell v Hodges has made marriage for same-sex couples a fundamental right guaranteed under the Fourteenth Amendment of the U.S. Constitution.

So, now that you can get married, what do you need to do about estate planning? First, you still need to do your estate planning. At the time of your spouse's death is not the time to be figuring out her or his wishes about cremation or burial. At the time of your death is not the time to be scrambling for who will have custody of your children. Second, it is better to consult an attorney about drafting necessary documents than relying on do-it-yourself documents, especially if you 1) have children, 2) own real estate or a business, 3) want to understand the tax implications, and 4) want to give any gifts to charities.

Making Your Wishes Known

Although your marriage creates a legal relationship between the two of you and your children, you still need to make your specific wishes known. There are numerous estate planning tools available to accomplish this. These include:

  • Wills: A will lets you decide who gets your property upon death, decide who will be the guardian of your children, and how you want your last rights to be honored.
  • Powers of attorney: A power of attorney allows you to appoint the person or persons who can make decision on your behalf if you are no longer able because of incapacity. Powers of attorney can be used to name individuals who can make decisions regarding the management of your property and to execute legal documents. A durable power of attorney for health care can be used to ensure your partner is able to visit you in the hospital, make medical decisions on your behalf, access bank accounts and sell property.
  • Cremation: In many states, if you want to be cremated, it is necessary for this wish to be written down with your signature attached to it. This written request can be incorporated into your will or powers of attorney.
  • Trusts: Trust can be used, among other things, to direct the care of minor children, minimize taxes, avoid a probate case, and protect assets from creditors.
  • Non-probate transfers: Life insurance, lifetime gifts, joint ownership of property and payable on death (POD) accounts are ways to pass property to your family that can work in conjunction with your will or trust.

As a couple, you have more to discuss with each other and decide upon than you think and when the process if over, it is often accompanied with a sense of comfort, relief and security.

Speak to an estate planning and probate attorney in Chicago

If you have questions about gay and lesbian estate planning or LGBTQ family law matters, contact Jill M. Metz & Associates today to schedule a consultation with one of our attorneys.

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