Estate Planning For the Same-Sex Couple


Estate Planning and Trusts Lawyer

As of January 6, 2015, same-sex marriage became legal throughout Florida with the cases of Brenner v. Scott and Grimsley v. Scott ruling Florida’s constitutional and statutory same-sex marriage bans unconstitutional. 

With such change comes many additional rights that same-sex couples may have not had before. Therefore, Florida residents who have recently married and are of the same sex (or have lived in a domestic partnership) should now have their Estate Planning documents reviewed and/or revised to ensure that you are taking advantage of all of the benefits allowable under the new law.

Marriage has its benefits with respect to taxes and the ability to transfer property. For instance, under Federal Law married couples may file a Joint Income Tax Return, roll over their spouse’s IRA into a special Spousal IRA, use Portability for unused tax exemption amounts, benefit from the Tenancy by the Entirety ownership for real property and personal property (only in some states), utilize Florida Homestead protection, take advantage of Florida elective share probate laws during Probate Administration, use gift-splitting in their tax planning, and collect public benefits upon the death of their spouse.

Same-sex couples can now utilize most, if not all of the above mentioned benefits of marriage, as well as the ability to plan for the next generation.

The following are five key documents every same-sex couples must have:

  1. Revocable Living Trust: This document can assist you in keeping assets out of Probate. Assets such as your personal banking, marital home, other real property, life insurance, etc. should be retitled in the name of your Revocable Trust so that you have a smaller Probate Estate upon your death.
  2. Pour Over Last Will and Testament: This document pairs with the Revocable Trust to allow you to avoid, or minimize Probate of your assets.
  3. Living Will and Designation of Health Care Surrogate: This document designates who will make your health related decisions.
  4. Durable Power of Attorney: This document designates who will make your health related decisions.
  5. Declaration of Pre-need Guardian: This document is very important for same-sex couples who adopt or otherwise have minor children. With this declaration, you can designate who will be the guardian of your child in the event that you are incapacitated or pass away unexpectedly.

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