Considerations for Estate Planning between Same-Sex Couples

Since the U.S. Supreme Court’s decision in 2015 granting the right to marriage to same-sex couples, they have enjoyed the same rights and benefits previously extended exclusively to heterosexual couples. However, many couples pre-date this time, and may have executed an estate plan that has not been updated, and thus, does not take this major change into account. This can lead to unnecessary tax liability or the loss of inheritance rights or retirement account benefits. Updating an estate plan executed prior to 2015, taking into account a subsequent marriage, is important to getting the outcome the couple desires and retaining control over one’s estate. Estate plans are not necessarily at the forefront of a person’s mind, but the day when they will be needed is rarely known. Given that the recognition of marriage between same-sex couples is recent, there may be some confusion about how best to structure an estate plan as married couples, as well as how to update an estate plan.

Property Rights

Many same-sex couples with long histories that pre-date the 2015 court decision have purchased property, intermingled assets, and accumulated other assets that become vitally important when one dies. Because same-sex marriage is recognized nationwide, married couples now ascend to the right to inherit property from a spouse under intestacy laws, even if there is no will, as well as homestead rights. However, intestacy distribution is according to the government’s design and it may not match what the couple wants. Thus, a will should be executed at a minimum, though a trust works better for many couples in this situation, as it saves time, money, and preserves privacy.

Homestead, however, is the area same-sex couples need to understand. Before marriage was recognized, same-sex couples could designate anyone they wanted to inherit the property – married couples do not have that same option for homestead properties. If a couple is married when a spouse dies, Florida homestead law limits inheritance rights to the surviving spouse, giving him/her, at a minimum, rights to the remain in the home for the rest of his/her life. If children exist, they also receive an interest in the property. It is possible to get around this rule, but it is often complicated, especially if children are involved, and needs the attention of an experienced estate planning attorney to be effective.

In addition, the titling of other property may need to be reviewed and changed. Married couples have access to more ownership structures than non-married couples, and this fact could change the way in which a same-sex couple wants to organize their estate.

Spouse’s Elective Share

One other area that same-sex couples should know is the strong stance Florida has against disinheriting a spouse and how that affects the distribution of assets after death. Even if a spouse is intentionally left out of a will, he/she will be entitled to receive an elective share of 30 percent of the deceased spouse’s estate. This 30 percent may include a much wider variety of assets, including those that fall outside the probate estate. Further, wills that were not updated to account for marriage will still result in the surviving spouse taking a share of the intestate estate if the deceased is married at the time of death. If these are of concern, an estate attorney should be consulted about possible options.

Seek Legal Advice

Your estate plan is one of the most important structures you can put together for the financial health and well-being of your family. Major events, like marriage, call for the creation or review of an estate plan, and same-sex couples may have unique considerations due to the changing laws. Clearwater estate planning attorney William Rambaum helps clients every day to create an estate that will support their loved ones for generations, and can talk to you about providing the same services. Contact the firm to schedule an appointment today.

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