Estate Planning: Same Sex Relationship Estate Planning

A Review Of Estate Planning Rights After The Supreme Courts Rulling On Same Sex Marriages

Now that the United States Supreme Court has deemed the refusal of states to allow same sex marriages unconstitutional, same sex couples in all fifty states may now marry, divorce and establish estate plans as spouses.  This is a good time to review the rights of married couples with respect to estate planning and the steps that couples should consider taking to ensure that their wishes are carried out properly.

In Ohio, surviving spouses have certain statutory rights to the deceased spouse’s probate estate.  In essence, you can’t completely disinherit a spouse.  Under Ohio law, a surviving spouse receives a number of benefits, including, but not limited to, a family allowance of the first $40,000 of the estate, the first two automobiles not specifically bequeathed, the right to live in the marital residence rent free for a year, the right to take against the will, etc.  Spouses also have certain property rights in divorces, such as the right to share in marital property and possibly spousal support.   However, many of these rights may be waived by executing an antenuptial agreement before marriage. With an antenuptial agreement, both parties may spell out in writing those rights that each are to have in the other’s assets in the event of divorce or death.  This contractual agreement cannot be created after the marriage has commenced, so if one if interested in preserving his or her pre-marital assets or controlling their disposition upon death, an antenuptial agreement should be strongly considered.

Married couples also enjoy certain tax benefits that are not available to non-married couples.  Spouses may make unlimited gifts to each other tax-free.  With unmarried couples, gift tax implications would arise.  Also, although there is no longer an Ohio estate tax, there is still a federal estate tax.  Thus, married same-sex couples with large estates may now take advantage of the unlimited exemption from federal estate taxes for assets passing to surviving spouses may and also incorporate a typical AB trust into their estate plan to maximize their estate tax savings upon the death of both of them.

It is important to remember that with respect to any married couple, same-sex or not, being married does not give you any legal rights to make decisions for your spouse.  Thus, in order to avoid a possible guardianship situation, you need to have the appropriate power of attorney and health care documents in place so that your spouse can make decisions for you on your behalf if you are unable to do so.

Same Sex Couples Afforded Same Opportunities – Discuss Your Estate Plan With Your Estate Planning Attorney

With respect to any important life event, it is important to review your estate planning documents or implement them if you have not already done so.  Certainly, a marriage is a change of events that warrants an estate planning review.   With respect to estate planning, same sex couples will now be afforded the rights and opportunities that have been afforded in the past to other married couples.  As with any couple, you should discuss your estate plan with your estate planning attorney to find out what estate planning rights and opportunities are available to you.

Attorney Joseph E. Balmer is a partner at the Dayton, Ohio law firm of Holzfaster, Cecil, McKnight & Mues and has been handling estate planning and elder law matters since 1991. He has been certified since 2006 by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law. Joe’s email is balmer@hcmmlaw.com

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