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Same-sex couples have estate planning needs

The legal recognition of same-sex marriages in this country in 2015 presented special complexities for estate planning for same-sex couples. They face a hodge-podge of state laws and confusion on their legal marital status. Some same-sex couples are married but don't know it. It is important that they know their legal status.

Before 2015, some couples were married in states that recognized their marriages, moved to states which did not recognize the marriage's validity and then split up. Because states did recognize their marriage, many of these couples did not legally end their marriages. Some states also converted registered domestic partnerships or civil unions into legal marriages.

Like other couples, same-sex couples should have a valid will. They should also obtain a power of attorney that gives the spouse or another person the power to act on a person's behalf on financial and health issues in certain circumstances.

Creation of a trust may be recommended, especially if there is possibility that there will be a fight over assets after a person dies. One attorney claims that families of same-sex couples are more likely to contest a will because these couples are more separated from their birth families.

Couples can establish and place their assets into the trust during their lifetime. It is more difficult to contest a trust when one of them dies because these do not go through probate.

Medical needs should also be addressed through a health care surrogate or proxy. Like a medical power of attorney, a person is designated to make medical or spiritual decisions and receive medical information. A person can also use a living will, do-not-resuscitate or other health directive.

As part of this planning, same-sex couples should consider adoption of their children to assure the distribution of assets to them. This is recommended because only one parent is usually biologically-related to the child and assets may go to other relatives. If only one spouse or partner is recognized as the parent, a trust can also help assure that the non-legal parent continues to have contact with the child if another person becomes a guardian.

Source: Nerdwallet, "Estate planning 101 for same-sex couples," Tina Orem, Accessed Dec. 4, 2017

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