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David Toback, Attorney at Law
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Estate Planning Issues for Same-Sex Couples

The United States Supreme Court has now legalized gay marriage. Aside from the emotional and societal impact of its decision, the decision also carries important ramifications when it comes to estate planning. However, because the decision is so new, many of the estate planning issues come in the form of questions, rather than answers.

Names – For those who already have wills or estate plans, it remains to be seen whether terms like “partner,” or “life partner,” will have any valid legal impact. Documents should be amended to say husband or wife. Documents that simply devise property to a name as opposed to a status are most likely still valid.

Make it Official – If you’ve previously had a marriage ceremony, don’t assume that it’s now valid retroactively. Those seeking the legal protections of marriage should go through the process of getting married. It doesn’t have to be fancy or expensive—get the marriage license, have an officiant do it, and make it legal.

Be Overprepared – Don’t assume that just because same sex marriage is now legal, hospitals, financial planners, or other professionals will just share information with you, or treat you the same as heterosexual partners. Perhaps because of prejudice, and perhaps simply out of caution and misunderstanding of the law, many hospitals or financial institutions may still want to see health care powers of attorney, living wills, and other legal documents, giving one partner the right to make decisions or access information on behalf of the other.

Amending Wills – It’s likely that same sex partners will now have the same rights to automatically inherit property upon the death of another. You now have to be aware of what property will automatically go to your spouse in the absence of any written estate plan.

While this is a victory for gay couples, there also may be planning involved. If you want a biological child to inherit certain property instead of your partner, that now has to be specifically set forth in a will or other writing. Gay couples will, however, be subject to elective share rules, so disinheriting a spouse will require further action, such as a prenuptial agreement.

Separation – If you separate, remember there is no legal separation in Florida—you’re divorced or you’re married. Thus, if you marry, then separate, and then fall for someone else, your legal husband or wife will inherit your property absent a valid divorce decree.

Purchasing Property – Florida has strong exemptions from creditors for property that is purchased jointly by married couples.That protection, including tenancy by the entireties and homestead rights, now extends to same sex couples. So, if you’re considering a major purchase, be it a home, a car, or anything of real value, you may want to hold off until you make the marriage official.

The law will continue to evolve, but same sex couples are encouraged to seek legal advice, as there is now a whole world of asset planning and estate planning that they need to be aware of.

The estate planning landscape is changing, and you should have an attorney that understands your individual situation and can tailor a plan that’s right for you. Contact Tampa business and probate attorney David Toback to discuss your needs and make sure your estate planning documents are up to date, and executed properly.

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