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Estate Planning for Same Sex Couples

Estate planning is the process of legally structuring the future disposition of current and projected assets during life and in death. It’s important to have a basic estate plan in place regardless of your net worth. Although it may seem like a morbid chore, estate planning offers many benefits:

  • Protect your assets from Medicaid
  • Your wishes will be legally binding.
  • Your heirs will not have to pay estate tax, with proper estate planning with an estate planning attorney.
  • You get to name the people to whom you wish to give your assets.

You get to name the people to whom you wish to give your assets, and your wishes will be legally binding. You can arrange it so that taxes take little to nothing from your estate. You have the satisfaction of knowing that your financial affairs are in order, so you won’t bequeath a costly administrative nightmare to your loved ones. Now that the Supreme Court has ruled the Defense of Marriage Act unconstitutional, lesbian and gay married couples living in one of the 14 marriage-equality jurisdictions will benefit sooner in their estate planning than same-sex couples in the rest of the country.

States Covered by the Court’s Ruling

As of 2015; the decision applies to same-sex married couples living in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and the District of Columbia. They’ll now be treated exactly like all other married couples and will enjoy the same marital benefits for estate planning under state and federal law as heterosexual marriages, like the unlimited marital deduction, which lets one spouse transfer all assets to the other spouse free of federal estate or gift tax. (The upshot of the Supreme Court decision on California’s Proposition 8 is that same-sex couples in that state will be allowed to marry by late July.)

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers

An estate plan can include several elements:

A Will, in a Will your basic directives of who will get your assets are put into writing.

Assignment of power of attorney, which gives the person you name the authority to manage your financial affairs if you are unable to do so.

A living will, which is a statement of your wishes for the kind of life-sustaining medical intervention you want, or don’t want, in the event that you become terminally ill and unable to communicate.

A health care proxy, which authorizes someone you trust to make medical decisions on your behalf.

For some people, a trust may make more sense. A living trust will avoid the costs of probate; if properly funded.

Make an appointment with one of the elder law estate planning attorneys at the law offices of Castiglia-Rubinstein & Associates today to discuss your options. Same Sex Estate Planning must be drafted carefully in order to ensure proper estate planning.  Work with a reputable estate planner to make sure your same sex will or trust is structured correctly.  If you or your loved ones have liquid assets or you own your own home your heirs are at risk of losing a significant part of your assets upon you getting sick or upon your untimely death.  It is more important than ever to prepare an estate plan if you have stocks, bonds, money market accounts, savings accounts, CD’s annuities or an IRA. An IRA can be protected with an IRA standalone retirement trust.  An IRA Standalone Retirement Trust must be drafted carefully in order to ensure that the trust qualifies as a “Designated Beneficiary.” This guarantees that the trust will be able to take out the minimum required distributions according to the beneficiary’s life expectancy, not the plan participant’s. If the trust is not set up properly, the entire inherited IRA will need to be withdrawn within five years of the plan participant’s death. Work with a reputable planner to make sure your trust is structured correctly and that your beneficiary, and not his or her creditor will receive the funds you pass down. The attorneys at Castiglia-Rubinstein & Associates are not only trained in handling simple elder law planning, estate planning, will and probate matters, we take care of complex estate planning, elder law and living trust estate litigation in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.

New Financial Planning Essentials for Same-Sex Couples

The effect on estate planning for married same-sex couples who are living in the 37 other states is unclear; the Obama administration is considering how the decision would apply to them.  The DOMA ruling won’t apply to civil unions or domestic partnerships, however.

Time to Be Cautious in Most States

So lesbian and gay couples living outside the ruling’s 13 states and Washington, D.C., need to proceed cautiously with their estate plans.

Given the new complications resulting from the court’s ruling, it’s now more important than ever to work with an estate lawyer with experience representing lesbian and gay clients to help draft key estate planning documents.  This will help ensure your wishes are properly carried out.

A Guide to Using Estate Planning Documents

In light of the Supreme Court same-sex couples ruling, let’s look at some basic estate planning documents properly:

A Will

If you and your partner don’t have wills and don’t live in a state where same-sex marriages are allowed, your state will determine who will inherit each of your estates.  In those states, your surviving spouse gets nothing if there’s no will. (This, of course, won’t be the case if you live in a marriage equality state.)

The Lawyers at Castiglia-Rubinstein and Associates can consult with you and your significant other about whether a trust would be helpful in your estate plan.  Even if you have a trust, however, you still need a Will.

Children A few specific tips if you have one or more children:  You name a guardian in the will to ensure the person you prefer will take care of your child or children, if necessary.  Also, if state law allows, enter into a second-parent or joint adoption arrangement.  If not, the law offices of Castiglia-Rubinstein & Associates can draft a joint custody agreement and file it in court.  This document will support the position that the two of you are parenting the child, which will also prove helpful if the relationship ends.

Again, check with a lawyer at the law offices of Castiglia-Rubinstein & Associates first because, the rules have changed depending on where you live and the date that you are reading this material.

A child born to a married same-sex couple living in a marriage-equality jurisdiction will be considered a child of the marriage and both spouses will have parental rights, just like every heterosexual couple under state and federal law.  If you’ve adopted a child and plan to move to a state without marriage equality, that state is required to recognize the parental rights of both parents, which makes adoption a preferred method to establish parental rights.

Pre-marriage agreements A domestic partnership agreement, or DPA Comparable to a prenuptial agreement, this contract is a useful way to address how you plan to share your income, expenses and property.  In this agreement, you can specify which property you hold jointly and which is separate.

If you don’t live in a marriage equality state but plan to get married in one, check with your lawyer about the legal ramifications. Then, if you will tie the knot, have a prenuptial agreement drawn up before exchanging vows.

Lesbian and gay couples living in a marriage-equality jurisdiction may also benefit from a prenuptial or post-nuptial agreement. Discuss this with your lawyer, too, since the DOMA decision has evened the playing field for you.  It’s a good idea to include a mediation or arbitration clause in these forms. That way, you and your partner can resolve disputes without resorting to expensive litigation.

Health Care

HIPAA authorization the health insurance portability and accountability act allows you to authorize medical providers to discuss your condition and prognosis with your partner. Without it, doctors may claim that they can speak only with “immediate family” — and in most states, your partner is not considered “immediate family.”  Avoid this problem by having an attorney help you with the HIPAA forms and a Living Will.  The attorneys at the law offices of Castiglia-Rubinstein & Associates can help you prepare a durable health care proxy that supersedes incompetency in the event of sickness, old age or unexpected tragedy.

To put it simply, estate planning for same sex couples involves deciding how you want each of your assets distributed after you die (or become unable to make your own financial decisions).  Estate planning for same sex couples can be complicated, so it’s best to consult a financial adviser and a lawyer when drawing up your estate plan.

We are dedicated to your success so contact us.  Speak with one of our knowledgeable Long Island will and same sex estate planning, living trust estate litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan.

Call 1-800-960-1529  today.

Get Help With Your Estate Plan Now. Be prepared for your loved ones with the proper estate plan.

You should know you have certain legal rights and must be very selective of the Lawyer or Law Firm that you chose to represent you. Have an Attorney council you on the Right Decision for You.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers

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