Estate Planning for Same Sex Couples

January 9, 2012 by Bart Chepenik

For same sex couples, having effective estate planning documents and correctly titled property is very important. Without documents expressing the wishes of the couple, there may be undesirable results in the event of a death or serious illness of a partner. If the couple’s wills are not executed properly, upon one partner’s death, property may pass intestate to a relative rather than to the surviving partner. Without a health care surrogate document, if one partner is sick in a hospital the other partner may not have rights to make important decisions for them. The current laws of Florida do not recognize same sex marriages so same sex couples living in South Florida have little protection outside of legal documents that their property and assets will pass to the surviving partner in the event of a death. There are many same sex couples living in Miami Beach, Ft. Lauderdale, Wilton Manors and other South Florida communities who can benefit from a comprehensive estate plan. It is important that same sex couples seek out the assistance of an experienced attorney to make sure their deeds, wills, trusts and powers of attorney are airtight and will carry out each person’s wishes in the event of death or serious illness. In this evolving area of law, same sex couples should have peace of mind that their post death wishes are secure.

An important step for same sex couples to take is to make sure their property is titled properly. Couples can hold property as joint tenants with rights of survivorship. This allows the property to pass to the surviving partner without the property having to go through the probate process. A same sex couple might believe their properties are titled correctly, but unfortunately sometimes deeds are titled incorrectly by mistake. If a deed is incorrect the property may be held only as tenants in common, meaning the property would not pass automatically upon death, but it would be subject to probate.

Another issue that same sex couples may face is the issue of privacy after the death of a partner. Once a person passes, their assets may be subject to probate, which becomes public record. This is not always ideal and can create tensions among family members. An experienced attorney can help assets pass without being subject to probate. This may involve creating pay on death accounts for life insurance and retirement accounts, creating trust documents to pass assets outside of probate or titling property to pass automatically upon death. Same sex couples need to be particularly aware of how their assets will pass, because laws in Florida offer little protection for a surviving partner in a same sex couple. An experienced attorney can make the process smoother by minimizing potential conflicts and disputes.

Furthermore, same sex couples need to make sure their estate plan is kept current. Changing laws in this area require up-to-date documents ensuring the couple’s wishes are met. A good attorney will gather information about the couple’s finances, relationship with their families, wishes for adopted children, and wishes in the event of an illness and incorporate this information for a comprehensive estate plan. If you are in a same sex partnership living in the West Palm Beach, Broward or Miami-Dade County area, the experienced attorneys at Chepenik Trushin can help create or revise wills and trusts to meet your estate plan goals. Please feel free to contact us for an initial consultation