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Same-sex couples have unique estate planning issues

Estate planning is important for all couples. However, same-sex couples in Washington and throughout the country face unique issues with regards to drafting a will and other estate issues that should be addressed.

In 2015, the U.S. Supreme Court legalized same-sex marriages in the entire nation. Before then, same-sex couples may have been married in a state that recognized these marriages and then move to a state which did not. Some states also converted civil unions or domestic partnerships into valid marriages. Accordingly, couples should first ascertain the legal status of their relationship, which can determine whether property automatically passes to the surviving spouse when the other spouse dies.

A valid will is necessary and can assure that property goes to the children or relatives intended by the spouse. These couples should also have a power of attorney which authorizes a spouse or someone else to act on their behalf on health and financial issues when a spouse becomes incapacitated.

Families of same-sex couples are also more prone to contest a will, according to an estate attorney. Placing assets in a trust helps diminish the chances of a will contest, because trusts usually do not have to go through probate proceedings.

Same-sex couples also need to document their wishes on medical treatment when they become incapacitated or cannot communicate. They are often challenged when they need to make medical decisions on behalf of their spouses or partner. One popular means is a health care surrogate or proxy that acts as a power of attorney for medical care. This authorizes a person to make medical or spiritual decisions for someone who is incapacitated. Another option is a living will, a do-not-resuscitate directive or other directive which memorializes a spouse's wishes for medical treatment when they are unable to communicate.

Finally, estate planning should include the children. Usually, a parent's assets pass to their children. However, some same-sex parents may need to include adoption in their estate planning, because only one parent may be biologically-related to the child. Adoption will help assure that the children are legally related to both parents and that the assets will go to them instead of other relatives.

An attorney can help couples understand their challenges and develop a plan that meets their needs and wishes. An attorney can draft estate documents that comply with Washington law and avoid confusion after a spouse dies.

Source: NerdWallet, "Estate planning 101 for same-sex couples," Tina Orem, June 7, 2017

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