On June 26, 2016, the US Supreme Court ruled that same-sex couples have the right to marry in all 50 states. This was a major win for the LGBTQ community, but many same-sex couples don’t realize that they still need to take additional action to ensure their estate- and health-related wishes are upheld in case of incapacitation or death. Further, individuals in committed same-sex relationships who do not wish to get married but want to protect their assets from outside influence also need to have a solid legal plan in place.
The best way to ensure your estate is handled the way you want it to be handled is to meet with an attorney who specializes in estate planning and thus knows the ins and outs of this complex process. However, before you meet with an attorney, it’s best to have general knowledge about same-sex couples’ rights and your own personal desires regarding your estate. Below are a few things you should consider before meeting with an attorney.
Since same-sex marriage has been legally recognized in Colorado, if something happens to you (e.g., you become incapacitated or pass away), your partner will be legally able to make decisions on your behalf. However, without proper documentation outlining how you want your affairs to be handled, outside forces (e.g., a family member who disapproves of your relationship) may challenge your partner’s rights. If you and your partner are not married, your significant other will have no legal right to make decisions for you, and your family will be asked to step in regardless of your desires.
To avoid expensive and emotionally draining issues that could arise in these types of situations, it’s important to have a valid, legally enforceable estate plan in place—whether you are married or not. Same-sex couples should meet with an attorney to create a financial power of attorney, a medical power of attorney, a HIPPA release, and a living will so they don't need to get the court involved in their personal affairs or last-wishes arrangements.
Without a will, when an individual dies, his or her estate goes to probate court, where a judge will decide how to divide the inheritance (your estate is likely to go to your parents if they are still living or to your siblings). Thus, whether you are married or not, you need to determine how your estate will be handled in the event of your death and who will receive your inheritance.
For married same-sex couples, if one spouse dies without an estate plan, Colorado would recognize the other spouse as the main beneficiary for inheritance (assuming other arrangements were not made). However, this right does not stand for same-sex couples who choose not to marry. In this case, if you want your partner to receive your estate, you will need to create a will specifically listing your partner as the main beneficiary.
When children are involved, the situation becomes slightly more complicated because the children of same-sex couples are not biologically related to both parents. Thus, if something happens to you or your partner, the child’s other biological parent or family members may attempt to gain custody. There are other estate-planning issues to keep in mind when you have children, including the possibility of disinheritance, delays in inheritance, elective share issues (i.e., the surviving spouse is generally given the right to reject the deceased spouse’s will in lieu of a percentage of the spouse’s property), and more. Again, you need to think carefully about these issues and decide how you ultimately want to divide your estate.
If you do not have children and do not have obvious heirs for your estate after you’re gone, an attorney can help you select beneficiaries and determine the best distribution scheme (e.g., giving a flat amount or a percentage of your estate).
There are many nuances to estate planning for same-sex couples that go beyond the scope of a blog post, so it’s important to contact an estate planning attorney to discuss these issues and create a solid estate plan for your future. Remember, a little planning today can save you, your partner, and your family a great deal of time, energy, and stress.