Same sex couples often have unique circumstances that can sometimes result in more complicated or creative estate planning techniques being implemented to ensure that their wishes are followed. Fortunately, there are a few simple steps that LGBT couples and their estate planning attorney can take to avoid potential pitfalls in the future. According to the pros, same sex couples should:
- Review their legal marital status ahead of time
In Illinois, same sex marriage has been legally recognized since 2014, and in 2015 the U.S. Supreme Court ruled that same sex marriage is legal nationwide. Prior to 2015, however, many same sex couples got married in states that recognized their union. moved to areas where LGBT marriage was not legal, and then split up. Since their nuptials were not recognized in non-legal states, many of these couples never legally dissolved their marriages and remain married to this day. And to make matters even more complicated, in some states domestic partnerships and civil unions were converted into legal marriages. As a result, many people are legally married and do not know it. Since assets typically pass to a legal spouse upon death, unintended consequences can result without proper estate planning.
- Create a comprehensive estate plan
A comprehensive estate plan goes beyond a simple will and can protect assets from being distributed according to the laws of intestate, prevent lengthy court battles or probate, and ensure that each member’s wishes are carried out. It should include a variety of documents like:
- Power of attorney for healthcare
- Durable power of attorney for assets
- A trust
- A will
- Plan ahead for the kids
Since in most cases, children are only biologically related to one spouse of the other in LGBT relationships, it is wise for same sex parents to establish an estate plan that addresses the needs of the kids well in advance. In Illinois, a co-parent or second parent adoption is often an excellent way to ensure that the non-biological parent’s assets are distributed to the children. Without this type of adoption, the deceased’s property could end up being passed to another relative down the line, leaving the kids empty handed. Additionally, an adoption can help make sure that children under 18 are cared for by the non-related parent in the event that the biological parent passes away.
