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Same-sex couples and estate planning

Estate planning is used to ensure that assets are handled according to the owners' wishes after they have died. For California same-sex couples, there may be issues that require additional consideration.

Although the 2015 decision by the United States Supreme Court legalized same-sex marriage, there were prior state laws that may present complications same-sex couples. Individuals should make sure that if they were previously married in a state that recognized their marriage, relocated to a different state that did not recognize their marriage, and then parted ways with their spouse without obtaining a formal dissolution, according to state law they may still be married. They should verify that any previous marriages are legally dissolved.

While a will is a useful estate planning tool, individuals may benefit from also completing a power of attorney so that a spouse or some other trusted family member or friend is able to act on their behalf if they suddenly lacks the capacity to do so. Trusts may also be useful if people anticipates disputes over their assets after they die. Families are more likely to contest the wills of same-sex couples than those of heterosexual couples as more LGBT may be on bad terms with their birth families. Same-sex couples should also consider their medical needs. Designating a health care surrogate as well as completing a do-not-resuscitate directive or living will is important.

An estate planning attorney may advise married couples about which type of tools they should use to preserve their assets. The attorney may also suggest financial and health care powers of attorney as a way to prepare for the unexpected.

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