Since the landmark Supreme Court decision of Obergefell v. Hodges in 2015, same-sex marriage became the law of the land, falling in line with beliefs that the majority of Americans already held about basic civil rights. However, though this no doubt moved our country in the right direction, there are still considerations that same-sex couples have to address that opposite-sex couples don’t have to deal with. Notably, there are specific challenges for same-sex couples in estate planning that can lead to complications down the road if not addressed.
If you live in Westerville, Ohio, Worthington, New Albany, or anywhere in Delaware County and Franklin County, contact The Law Office of David G. Bale for compassionate legal assistance. An attorney will provide dependable legal guidance while keeping your best interests in mind.
Estate Planning for Unmarried Partners
Firstly, it’s important to make a distinction between the issues involved in married same-sex couples’ estate planning compared to unmarried same-sex estate planning. If you are in a same-sex relationship and you want your partner to have certain rights and powers regarding your estate, your finances, and your health care, consider addressing these common unmarried same-sex estate planning concerns with your attorney:
- Making a will or trust: A will is the backbone of any estate plan and will allow you to assign assets to beneficiaries of your choice, appoint a legal guardian for any minor children or pets, and name an executor who will be responsible for administering your estate. A trust works in a similar manner, except that you transfer ownership of your assets to your trustee while you’re still living, so they can then distribute these assets directly instead of going through probate.
- Avoiding probate: Probate is the legal process by which a deceased person’s estate is moved through the court system to ensure all taxes and debts are addressed and the deceased’s will is executed correctly. Taking steps ahead of time, such as using trusts or setting up jointly-held assets and transfer-on-death accounts can help you avoid probate, which can save your heirs time and money.
- Health Care Directive: An advance directive allows you to specify what kind of medical care and treatment you do and don’t want should you become incapacitated and no longer able to communicate. It also lets you name an individual who can make healthcare decisions on your behalf. This person is sometimes a healthcare proxy or healthcare agent and can ensure that the care you get is in line with your values.
- Financial Power of Attorney: Like a healthcare directive, a financial power of attorney lets you assign someone who can make financial decisions for you regarding bank accounts, investments, retirement funds, or business dealings.
- Estate Taxes: In some cases, your heirs will be subject to federal estate taxes though this is only for those with extremely large estates. Ohio currently doesn’t impose a state estate tax.
Estate Planning for Married Couples
Same-sex couples who are married will enjoy all the rights and privileges that any other married couple has, but there still are a couple of issues that may need to be addressed.
- Children and LGBTQ estate planning: Same-sex couples who have joint children can often find themselves in a unique position regarding who becomes the legal guardian for a child if one parent passes away and how assets are passed down. For example, if one partner was the birth mother of a child, she will be automatically listed as the parent on the birth certificate. However, if the biological father is not involved in the mother’s life, there may not be another legal parent listed even if the birth mother is in a committed relationship and raising the child with her spouse. In some heartbreaking cases, if the birth mother dies the child would not automatically go to the other parent unless they had been officially adopted by them.
Another issue that can come up is inheritance. If a parent dies without a will, Ohio’s intestate succession laws must be followed, which can automatically transfer assets to a child. However, if the child doesn’t legally belong to the parent (even if they’ve been raising them since birth), the child may not be in line for the inheritance they’re rightfully due.
- Update beneficiaries: One other concern that couples don’t always think about is updating their beneficiaries from financial accounts like retirement funds, IRAs, or pensions. If you’re married but still have the name of an ex-partner on official documents, your current spouse may not be able to inherit your assets.
Reliable & Compassionate Legal Help
If you’d like to meet with an LGBTQ estate planning attorney in the Westerville, Ohio area, reach out to The Law Office of David G. Bale. With over 40 years of experience working as an attorney, David Bale is committed to educating all his clients about the legal processes they’re involved in so they can make informed decisions about their future. Call today to get started.