NOTE TO READERS: This article addresses the legal situation before the Supreme Court's June, 2015 decision in Obergefell v. Hodges, which made same-sex marriage legal in all 50 states.
Most people, gay or not, should consider making an estate plan. However, same-sex couples have more to gain from making an estate plan than do straight couples, because in many states, they cannot marry, making them ineligible for the benefits of laws designed to protect married people and their assets. An estate plan can also help clarify the nature their relationship for those family members or professionals who may not understand it or approve of it.
State and federal laws affect how couples own property together, who gets which assets when one member of a couple dies, how taxes are calculated and paid, and who has the right to make health care decisions if one member of the couple becomes incapacitated.
Generally, laws protect spouses in all these situations. For examples, spouses have a right to visit each other in the hospital, and to inherit from one another. They get tax breaks as well. But because same-sex couples cannot marry in most states, they are denied these benefits. They need to create estate planning documents that spell out their wishes and, as far as possible, make them legally binding.
To learn which specific estate planning tools same-sex couples should consider, read 6 Key Estate Planning Issues for Gay Couples.
Unlike straight unmarried couples, gay couples cannot rely on society’s norms to validate their most important relationships. While an unmarried straight couple might be readily recognized as a couple by friends, family, social workers, or hospital employees, a same-sex couple might have to do more convincing.
An estate plan can indicate to everyone involved that your partner is your partner and that he or she should be treated as such -- particularly when it comes to knowing about your wishes. This may be important for same-sex couples whose families do not know about or support their partnership. It is also important for decisions that don’t require legal backing.
For example, a Final Arrangements document is not a legally binding estate planning tool, but it sets out your final wishes out, so that your partner will have a written account of your wishes. When dealing with other family members, a final arrangements document will be much more authoritative than your partner simply saying, for example, “he said he wanted to be cremated.”
Many people can make an estate plan on their own. It can also be a good idea, however, to see an estate planning attorney who specializes in same-sex legal issues in your state.
If you have a simple estate and simple wishes, you may be able to make a will, trust, health care directive, financial power of attorney, and final arrangements document without the help of a lawyer. All of these documents are available through Quicken WillMaker & Trust.
Learn more about these documents in Six Key Estate Planning Issues for Gay Couples.
Because laws affecting same-sex couples can be complicated – especially when it comes to how property rights change from state to state -- see an estate planning attorney or tax professional for questions about state and federal taxes or moving to a different state. It’s also a good idea to run your estate plan by an experienced attorney, just to make sure you’ve got your bases covered.
To find an attorney in your area, you can start with Nolo’s Lawyer Directory. Also ask your friends – sometimes a friend’s reference is the best way to find a good lawyer.
Learn more about Finding and Working with a Lawyer.
Do not rely on the law to do your estate planning for you. Even if you are legally married, in a domestic partnership, or in a civil union, make a plan so that your wishes are documented no matter where you live or who is assessing the legality of your partnership.
Learn more about legal issues affecting gay couples on the LGBTQ Law section of Nolo.com.