Estate planning is important for all responsible adults. However, it was absolutely essential for same-sex couples in committed relationships before these unions were recognized by the government.
There are certain protections in place for married couples that are related to estate planning, and they ensure some basic rights even if there is no will or trust in place. For example, a spouse would be first in line for an inheritance under intestate succession laws.
Another benefit that is important for high net worth individuals is the unlimited marital estate tax deduction. High net worth individuals can be exposed to this tax, but married couples can transfer unlimited assets to one another free of taxation.
In fact, this dynamic was at the core of a legal case that changed the playing field. A woman named Edith Windsor filed a lawsuit after the IRS forced her to pay the estate tax after her partner passed away, even though they had been married in Canada.
The case was decided in her favor by the Supreme Court in 2013, and in 2015, another decision made same-sex marriages legal in every state. Now, every married couple can enjoy the basic protections.
This being stated, there are many single members of the LGBTQ community, and there are people in committed relationships the choose not get married. Plus, even if you have the protections that go along with marriage, you should have an intelligent estate plan in place.
You have to use some type of legal device to facilitate asset transfers when you are planning your estate. A lot of people immediately equate this to the creation of a simple will, but there is another option that is a better choice for a wide range of people.
The revocable living trust is a more versatile and effective tool. If you establish this type of trust, you would act as the trustee, so you would have total control of the assets at all times.
This is a legal process that would be necessary if you use a will to direct postmortem asset transfers. It is time consuming and expensive, and probate records are available to the general public, so there is a loss of privacy.
A living trust can include a spendthrift provision that will protect the assets from the beneficiaries’ creditors. You have the ability to dictate the nature of the monetary distributions to the heirs, so you can allow for incremental payouts on an ongoing basis as a spending safeguard.
If you are married, you and your spouse could choose to establish a joint living trust, and this can be an efficient way to go. In addition to the living trust, there are other types of trusts that can be used to satisfy certain targeted objectives.
Your estate plan should include an incapacity planning component. You can state your life support preferences in a living will, and your organ and tissue donation and comfort care medication choices can be added as well.
Medical scenarios can arise that are not related to life-support utilization when you are unable to communicate your own decisions. To account for this possibility, you can name a representative in a durable power of attorney for health care.
The Health Insurance Portability and Accountability Act was enacted in 1996 to protect patient privacy. A provision contained within this measure prevents doctors from sharing health care information with anyone other than the patient.
With this in mind, your plan should include a HIPAA release to give doctors the green light to share your medical info with your health care representative and anyone else that you include.
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We are very sensitive to the needs of the LGBTQ community, so you can rest assured that you will feel completely comfortable working with our firm. We can gain understanding of your priorities and help you create a plan that provides for your loved ones in the ideal manner.