Same-Sex Marriage and Estate Planning

After the legalization of same-sex marriage nationally and in Arizona, many same-sex married couples have learned that it is critical for all married couples, including same-sex couples, to have a comprehensive estate plan. An estate plan can provide for your spouse when you pass and while you are living, give your spouse (if you so choose) authority to make decisions on your behalf should you become incapacitated.

same sex couple with lawyer discussing about estate planning

Below are five items that married same-sex couples should consider including in an estate plan.

  1. Last Will and Testament

Wills are the most common estate planning tool. In your will, you can designate which beneficiaries will receive your property at your death. Additionally, you can name a guardian for any minor children and an executor.

Same-sex married couples should be aware of the unlimited marital deduction for federal and estate gift taxes. Same-sex couples can leave unlimited assets to their spouses in their will without triggering federal estate tax.

If you die without a will, Arizona’s intestacy laws will determine how your assets are distributed. If you die with a spouse and no children from outside the marriage, your spouse will inherit everything. If you have children from outside the marriage, the property is split between the surviving spouse and your children. If you have minor children, the court will decide who steps in as the guardian.

  • Durable Power of Attorney

In addition to planning for your death, an estate plan prepares for your incapacitation. A durable power of attorney allows you to name a trusted individual to handle your financial affairs on your behalf if you become legally incapacitated. For example, your agent could pay bills, file taxes, and sell property on your behalf. Same-sex couples often name their spouse as their agent.

  • Healthcare Power of Attorney

Same-sex couples living in Phoenix often mistakenly believe they can automatically make medical decisions for their spouse if they become legally incapacitated. This is false. For example, medical privacy laws (HIPPA) may bar your spouse from accessing your medical records without a court order. A healthcare power of attorney allows you to appoint an individual to make healthcare decisions on your behalf if you become legally incapacitated. Your agent can access your medical records and make decisions regarding your treatment.  

  • Living Will

A living will is a legal document where you state your instructions for end-of-life care in the event you are incapacitated and unable to communicate for yourself. It addresses issues such as CPR, dialysis, tube feeding, mechanical ventilation, palliative care, and organ donation. Having a living will reduces the stress on your spouse because they will not be forced to make these difficult decisions on your behalf. It will also reduce the potential for fighting between your spouse and other family members who may disagree on the best course of action.

  • Revocable Living Trust

Same-sex married couples should consider adding a revocable living trust to their estate plan. A revocable living trust is a type of trust that can be changed or revoked by the grantor (the person who creates the trust) at any time. The assets in the trust avoid probate, and if you become incapacitated, your successor trustee automatically assumes control over the trust assets. People commonly name their spouse as their successor trustee.  

  • Update Beneficiary Designations

Same-sex couples should be sure to update the beneficiary designations on their non-probate assets, such as retirement accounts and life insurance. The beneficiary designations will override the instructions in your will. Not reviewing and updating beneficiary designations is one of the most common and costly estate planning mistakes couples can make.  

How is Marriage Different Than Domestic Partnership in Phoenix?

Same-sex couples that are not married face unique estate planning challenges. Couples in a domestic partnership in Phoenix do not have the same rights as married couples. They may need to include additional documents, such as a domestic partnership agreement and hospital visitation authorization, in their estate plan. If you are in a domestic partnership, consider the need for setting up needed documents such as a domestic partnership agreement.

Phoenix Attorney Serving the LGBT Community

Same-sex couples, married or unmarried, should consult with a LGBT supportive and experienced Phoenix estate planning attorney, like Nicole Pavlik, who will create a plan for each person in a couple to best fit their wishes.

Top Phoenix estate planning attorney, Nicole Pavlik warns couples not to assume marriage affords them rights that render an estate plan unnecessary. Unfortunately, this assumption is false and makes same-sex couples more vulnerable now than ever before. 

Nicole Pavlik Law Firm helps the residents of Phoenix, Arizona with their estate planning needs. Call Nicole Pavlik Law Firm today at (602) 635-6176.