same-sex parents and kids looking at tablet

What Should Same-Sex Couples Consider When Estate Planning?

Same-sex couples have gone through multiple legal hurdles to get recognized as different-sex couples do. Same-sex marriage is now legal under federal law, but these couples still have to think about some unique issues that different-sex couples take for granted. It would be a mistake to assume that the federal law that legalized same-sex marriage also cleaned up the issues caused by the winding legal path of the past few decades.

DIY estate planning can cause unintended negative consequences in the simplest situation, but same-sex couples have additional concerns to think about when crafting their plans for what will happen after they are gone or if they become incapacitated. You can talk to a Fort Worth estate planning attorney about what same-sex couples should consider when estate planning.

Previous Recognized Relationships

Before same-sex marriage was allowed, many couples entered into alternative legally-recognized relationships like civil unions or domestic partnerships to have some legal acknowledgment of their relationships. When these parties break up, they might move on with their lives without dissolving these legal arrangements. 

If you filed a domestic partnership agreement in a state that automatically “upgraded” these partnerships to marriages, you might not realize that you are married, particularly if you no longer live in that state. You need to undo all of these prior legal arrangements to avoid a snarled mess with your estate. 

For example, if you now make a will or trust that lists your spouse as your beneficiary and you already have a spouse from an automatic “upgrade,” your current spouse might not be your actual spouse, and your current partner might get left with nothing.

Protecting Yourself and Your Partner from Your “Natural” Heirs

If you are in a same-sex relationship but have not yet married, your partner will not have any legal protections unless you create them and put them in writing. Without these protections, members of your family might be your natural heirs in the eyes of Texas law. If your family does not approve of your lifestyle, they could get vindictive toward your partner. 

Here are some of the documents same-sex couples should consider getting:

Durable Power of Attorney for Financial Matters

If you become incapacitated because of an injury or illness, the person you name in your Durable Power of Attorney for Financial Matters can manage your economic issues, run your business, and whatever else you stipulate in this document. The document needs to be “durable” because a non-durable power of attorney can be automatically invalidated if you become incapacitated. 

Without a Durable Power of Attorney for Financial Matters, your blood relatives could go to court and ask a judge to appoint someone else to take care of your finances. They might shut your partner out from the finances, perhaps even have your partner evicted from the residence.

Medical Power of Attorney

This document gives the person you choose the legal authority to make your medical decisions if you cannot do so for yourself. Without this document, your family could ask a judge to select one of them to serve in this role. Also, your family could bar your partner from visiting you in the hospital or finding out how you are doing.

HIPAA-Compliant Medical Records Authorization

You will want to sign one of these papers. Otherwise, your medical decision-maker will not be allowed to review your medical records to make informed decisions on your behalf.

Will or Living Trust

Your will or living trust should clarify who you want to receive your assets when you die. You will want to use the individuals’ full names, like Adam Robert Smith, rather than using their title or status, like spouse or husband.

Beneficiary Designation on Your Retirement, Life Insurance, Bank and Brokerage Accounts

You can arrange for some assets to pass directly to your beneficiaries without having to go through the probate court. Simply identify the individuals or organizations, like charities, you want to receive the proceeds or balance of your accounts on the Beneficiary Designation line for each account.

Estate planning can be more complicated for same-sex couples, whether married or not. It could be to your advantage to talk to a Fort Worth estate planning attorney to craft a plan that will meet your needs and goals. Contact our office today; we gladly offer a free consultation.