In the grand scheme of things, the right to same-sex marriage is still shockingly recent. It has only been legal in California since 2008, and it has been federally permitted since 2015. As such, same-gender couples are, on average, younger and less likely to be thinking about issues like estate planning.
However, estate planning isn’t a luxury for members of the LGBTQ+ community. It is one of the best ways people outside of traditional heterosexual relationships can protect their loved ones’ rights after they pass. Creating a comprehensive estate plan with a will, powers of attorney, and an Advance Medical Directive is invaluable for ensuring your family of choice is given appropriate legal acknowledgment.
Key Considerations in Estate Planning for Same-Sex Couples
Current state and federal law grant same-sex married couples the same rights as heterosexual spouses. However, laws can and do change. Furthermore, many LGBTQ+ people prefer nontraditional relationships or opt to remain unmarried life partners. As such, people in the community are more likely than most to benefit from estate plans.
A well-written estate plan can reinforce legal protections regardless of whether you are legally married. If you are in a same-sex relationship, your plan should account for issues like:
- Navigating legal complexities and protecting assets: If you are unmarried or federal laws change, you cannot rely on standard marriage inheritance laws to protect your partner. Your plan should explicitly name your partner as your primary beneficiary to give them legal rights to your assets.
- Tax implications and strategies for minimizing tax burdens: You can structure your plan to account for potential tax liabilities and guard your loved ones against unnecessary tax burdens.
- Planning for healthcare decisions and incapacity: Granting your partner power of attorney is crucial to ensure your medical wishes are respected, especially if your family of origin is not accepting.
- Addressing blended families: Same-sex couples are more likely to create blended families, which can lead to unique complications. You can use your plan to protect your children’s inheritance or name your partner’s kids as your beneficiaries.
- Adoption and parental rights: Adopting a child is an excellent way to ensure they are included among your beneficiaries. If you share a family with your partner, you may want to consider adopting your joint children if you are not already their legal parent.
- Protecting against family disputes and challenges to the estate plan: Many LGBTQ+ people have conflicts with their families of origin. If you are concerned that they may try to challenge your plan, you can work with your attorney to ensure that your plan offers minimal opportunities for probate disputes.
While every estate plan should account for these issues, they are especially important for people outside the legal default, as the law may not be structured to give them the necessary support.
Estate Planning Options for Same-Sex Couples in California
You can use many strategies to protect your partner when writing your estate plan. Some of the most effective tools for safeguarding assets and loved ones in California include:
- Wills: You can use your will to name your beneficiaries and define who should and should not receive your assets upon your death. A will is crucial to protect your partner, especially if you’re not married.
- Trusts: You can use trusts to avoid excess tax liability and pass on assets to loved ones beyond your legal spouse with less time spent in expensive probate battles.
- Advance Medical Directives: You may use an Advance Medical Directive, or living will, to explain what you want to happen to you if you are incapacitated and unable to make your own decisions.
- Power of Attorney: The person you grant power of attorney can make legal and medical decisions on your behalf. If you do not assign power of attorney, it will fall upon your next of kin, which will not be your partner if you are unmarried.
Does Same-Sex Marriage Matter for Your Estate Plan?
Yes, your marital status matters when planning your estate. Married couples of all genders become each other’s primary beneficiaries automatically. This provides an extra layer of legal protection that may be worthwhile even if you do not feel the need to get married as a relationship milestone.
One crucial benefit of marriage is California’s community property laws. State legislation defines all property acquired during marriage to be community property, meaning that it is automatically jointly owned. When one spouse passes, the other person already legally owns half the joint assets. No matter what disputes may arise, this ensures your partner will not lose everything.
If you aren’t married, you must rely on joint tenancy laws instead. Joint tenants co-own the property, so it automatically reverts to the surviving owner in full when the other person passes away. Joint tenancy provides more protections against debts, but fewer against taxes, which is often less beneficial for couples with significant assets. However, if you are married, you can benefit from both joint tenancy and community property laws.
Additionally, married couples are automatically granted rights to Social Security and survivorship benefits. You may also receive these benefits if you are in a registered domestic partnership in California. If your relationship is not legally acknowledged in some way, your partner will not receive these benefits.
In short, while marriage is not a requirement, it can simplify many elements of inheritance. Should you choose to remain unmarried, designing a comprehensive estate plan to safeguard your loved ones is particularly important.
Working with an LGBTQ+ Friendly Estate Planning Attorney
Estate planning is a complex matter, regardless of your family structure. If you’re in a same-sex partnership, it can become even more complicated. That’s why working with an experienced, accepting California estate planning attorney is important.At CC LawGroup, we proudly support all families in producing comprehensive and effective estate plans. Our Newark estate planning attorneys will work with you to address your concerns for the future and ensure your loved ones will be protected. Get in touch today to discuss your needs and begin your personalized LGBTQ+ estate plan.