Having at least a basic estate plan in place should be a goal for every adult. If you are part of an LGBTQ couple, the need for estate planning is heightened as are the benefits you will enjoy from having a plan in place. To ensure that you understand the importance of estate planning, a Vero Beach estate planning attorney at Kulas & Crawford discusses the continued need for LGBTQ estate planning.
Marriage Equality – Finally
Until recently, laws across the country banned same-sex couples from marrying and refused to recognize same-sex marriages performed in states or countries where it was legal to marry. Furthermore, most state and federal benefits refused to recognize a same-sex marriage, meaning same-sex spouse’s did not enjoy benefits their opposite sex counterparts did. That all changed – finally – in 2015 with the historic Supreme Court decision in Obergefell v. Hodges. In that case – which actually started as an estate planning issue — the Supreme Court of the United States finally put to rest the issue of same-sex marriage by declaring that marriage was a fundamental right that states cannot infringe upon. The practical result of Obergefell was that same-sex marriage must now be allowed in every state.
Practical Problems Following Obergefell
The victory in Obergefell was unquestionably a turning point for LGBTQ rights. Nevertheless, it has caused some short term confusion that highlights the need for estate planning.
Prior to the Supreme Court decision, some same-sex couples who were married in a state that recognized their marriage subsequently moved to a state that did not recognize same-sex marriage, and then separated. Because they were now living in a state that did not recognize same-sex marriage, they never bothered to file for divorce. Now that the law requires all states to recognize same-sex marriage, they are still legally married in every state — and may not even realize it.
Another potential source of confusion occurs when a same-sex couple registered in a state that only offered an alternative to same-sex marriage, such as a civil union. After the Obergefell decision, some states automatically converted civil unions, domestic partnerships, and other alternatives to legal marriages. Once again, this has created a situation where a same-sex couple could be unaware of the fact that they are legally married.
The end result for some LGBTQ couples is that the rights and benefits conferred on a legal spouse may now belong to someone with whom you ended a relationship some time ago. Fortunately, estate planning tools and strategies can be used to ensure that the confusion following Obergefell does not result in problems for you or your estate down the road.
The Ongoing Need for LGBTQ Estate Planning
While the importance of the marriage equality victory cannot be overemphasized, the need for a comprehensive estate plan remains. If your family has not yet accepted your LGBTQ marriage or relationship, for example, your spouse/partner could be shut out of the decision-making process entirely in the event of your incapacity or death. Moreover, a costly and painful legal battle could ensue, causing irreparable harm to everyone involved. Fortunately, both the emotional and monetary cost of litigation can be avoided by making it clear in your estate plan who you wish to inherit from your estate, who you wish to administer your estate, and who you wish to make decisions for you in the event you are unable to make them for yourself at some point in the future.
Until the law, and society, finally grant complete equality to members of the LGBTQ community, estate planning will remain important as it can do what the law and society have yet to completely accomplish.
Contact a Vero Beach LGBTQ Estate Planning Attorney
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about estate planning for LGBTQ couples, please contact an experienced Vero Beach LGBTQ estate planning attorney at Kulas & Crawford by calling (772) 398-0720 to discuss your legal options.
