Estate Planning for Same-Sex Couples

As a gay couple, you face special legal challenges. But, because you’re gay, the benefits of estate planning may be even more valuable and important to you than to a straight couple.

Estate planning allows you control your estate and plan for the future regardless of whether or not your state of residence recognizes your relationship. Today we’re going to jump right in and review the main benefits to estate planning as a gay couple and the important steps you need to take to start your estate planning off on the right foot.

Know Your State of Residence’s Stance on Your Relationship

If you are living in the same state you were married in, chances are the state will treat your spouse just as they would the surviving spouse of a straight marriage. Where it starts to get worrisome is when you are either not married but in a committed relationship, or if you were married in a state besides your state of residence and if your current state doesn’t recognize your union.

Even if your state does recognize your relationship, you should still consider creating an estate plan. If your state does not recognize your relationship or marriage, you absolutely need to get your affairs in order and have an estate plan put in place for each of you.

Why is this so important?

Unfortunately, many states still don’t recognize gay marriage. While you can lobby for change, for now it’s up to you to make sure your spouse is covered through your estate plan. The good news is, most of the time it’s as simple as naming them in your will and updating your beneficiaries on life insurance policies and any financial accounts to include your spouse.

If you’re living in a state that doesn’t recognize your marriage, and you die, your spouse will not be one of the heirs the state automatically identifies. If you do not clearly designate them as a beneficiary, both on any necessary contracts and in your will if you have one, they will not inherit anything.

Take note, if you have a contract, like a life insurance policy, you need to name your spouse as a beneficiary. You can’t just name them as a beneficiary in your will and you can’t override a contract beneficiary by naming a different one in your will. You need to make them match.

Complete an Advance Healthcare Directive

An advance healthcare directive; also known as an AHD, is a legal form that does many things in the event you’re incapacitated. Some of its most notable qualities are that it lets your doctor, family, and friends know the types of treatment you want in the event of severe illness or at the end of your life; states whether or not you want to be an organ donor; and names the person who you want to make important healthcare decisions on your behalf.

Thinking about your advance healthcare directive (AHD) is enough to make regular estate planning look like a walk in the park, but as a gay couple the AHD is even more important than usual. Because your relationship is not yet as widely socially recognized, or legally recognized, having an AHD can give you peace of mind that in your most vulnerable state, the person you trust most, namely your spouse, can make decisions for your care.

Why is this so important?

If you become hospitalized without an AHD in place, your spouse may not have any authority to make decisions on your behalf. That means, if you are incapacitated in a state that doesn’t recognize your relationship and you haven’t named your spouse in an AHD, the state will decide who makes healthcare decisions for you. Often times it is your parents, child, or other blood relative. Unless that’s a person you would prefer to make those decisions for you, this can be a heartbreaking scenario.

Make sure you both plan ahead and you each understand what the other wants and complete an advance healthcare directive to that effect.

Create Your Will and Keep It Updated

A will can represent a lot of things to different people, and to gay couples one thing it can represent is empowerment. Take charge of your estate planning and get peace of mind.

No matter where you live or what anyone thinks of you or your relationship, you can have the final say in the distribution of your assets. Even if you are not married, in a registered domestic partnership, or in a civil union, your spouse can inherit from your estate as long as you’ve named them as a beneficiary.

Why is this so important?

Regardless of your current state of residence or how much value anyone else places on your relationship, creating a will allows your wishes to be known and honored in the event of your death. Don’t rely on your state, or other people, to honor your wishes and intentions after you die. Instead, protect your assets and your spouse. It’s easy enough to do with simple estate planning, like the creation of a will.

Although most aspects of creating a will are not difficult, it can seem like a lot to think about. You can make sure you don’t miss anything by following the will writing checklist. And, if you feel like you need additional guidance, it never hurts to consult an attorney about your specific situation.

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