Estate Planning for Same-Sex Couples in the Wake of Obergefell v. Hodges

How does this landmark United States Supreme Court decision effect estate planning strategies?

While the State of California has recognized same-sex marriage for a number of years, a recent landmark United States Supreme Court decision has legalized this practice across the country.  Even though this type of marriage was already legal in California it is important to understand the effect it will have on estate planning strategies for these couples.

Most importantly, the ambiguity is gone.  It is no longer up in the air whether the plan of a same sex couple will be honored or not.  Often times, it was unclear whether a plan created in California would hold up in a state that did not recognize same-sex marriage.  That is no longer the case.  These couples now have the ability to create estate plans that must be honored no matter where they end up being administered.  With this recognition come a number of benefits.

In states that previously did not recognize same-sex marriages, a surviving same-sex spouse will now be included in intestacy laws.  This means that if his or her spouse dies without a will the surviving spouse will be entitled to inherit as a matter of law.  With this also comes the principle that a spouse cannot be disinherited.  Same-sex spouses will also be legally entitled to make financial and medical decisions for their partner in certain situations even if this power is not directly given to them in a Power of Attorney or Health Care Proxy.  

Same-sex couples will also be able to benefit from the estate tax exemption as heterosexual couples would.  Individuals are not required to pay a Federal estate tax unless their estate is worth more than $5.43 million.  For couples, the amount of the exemption climbs to over $10 million.  There is now no question that same-sex couples will benefit from the exemption.  The exemption is also portable meaning that the surviving spouse can use the remainder of the exemption left by a deceased spouse.  Same-sex spouses are now also able to pass assets to one another tax-free, as they will qualify for the marital deduction.

If you are married to a person of the same sex and are interested in creating an estate plan the experienced Orange County and Irvine, California lawyers at OC Wills and Trust Attorneys can help.  Contact us today at (949)347-5256 to schedule a consultation