Some Estate Planning Considerations for Same-Sex Couples After Obergefell

• February 29, 2016
• CLLB Law
• Estate & Elder Law

The law is always in flux. To be effective, laws have to be able to address the constantly evolving views and values of society. Many civil rights issues are battled over in the courts and the legislature for decades. In 1973, Maryland became the first state to ban same-sex marriage by statute, spurring the gay and lesbian equal rights movement forward through domestic partnerships, the Defense of Marriage Act (DOMA), constitutional amendments, civil unions, patchwork state legalization/prohibition, and full marriage legalization in June of 2015.

The Supreme Court decision in Obergefell vs. Hodges prevents any state from denying marriage licenses to same-sex couples. That ruling automatically results in many benefits and protections under the law. Same-sex couples can now file state and federal tax returns as married persons, and can take advantage of certain tax breaks such as the availability of the unlimited marital deduction from federal estate tax and the gift tax for transfers between the spouses. Receiving an exemption from both estate taxes and gift taxes for all property given or left among spouses, and creating life estate trusts that are restricted to married couples are now options available to same-gendered couples.

A married same-sex couple can now modify their estate planning documents to make sure that any assets will pass to the surviving spouse, thereby deferring all federal estate taxes until the surviving spouse’s death. A surviving same-sex spouse is permitted to receive wages, workers’ compensation, and retirement plan benefits for a deceased spouse. In fact, a surviving spouse is entitled to roll over a decedent spouse’s retirement account into his or her retirement account without being required to take minimum distributions or lump-sum distributions. Furthermore, married couples Indiana are entitled to a form of real property ownership known as tenancy by the entirety, which includes a joint right of survivorship, payable on death.

While all of these changes give benefits based on the marriage, the fact of being a spouse alone does not give anyone power of attorney over his or her spouse’s affairs. A power of attorney document is necessary for a spouse to make financial or health related decisions for the other spouse in the event he or she becomes incapacitated. Spouses should also complete a living will, which protects one’s right to refuse unwanted medical treatment or to ask for desired treatment in the event of incapacity.

Whatever your situation or hopes for the future, the New Albany, IN, same-sex estate planning lawyers at Church, Langdon, Lopp, Banet Law can help. We understand the issues and can guide you through the process, no matter what your relationship. We will work closely with you and help you make the best decisions possible. We have worked with many families, and we look forward to working with yours. For skilled and knowledgeable representation, contact us by calling 812-725-8224 or filling out our online form. Based in New Albany, Indiana, we proudly serve communities throughout Kentuckiana; Floyd County, IN; and Clark County, IN.