What Same-Sex Couples Should Know About Estate Planning in Florida

Earlier this year, Florida became the 36th state to legalize same-sex marriage, which was undoubtedly a monumental event for many South Florida residents. Up until then, gay and lesbian couples who wanted the benefit of marriage, but were legally unable to tie the knot, had very few options when considering things like estate planning, healthcare decisions, and taxes. After legalization, same-sex couples now have the opportunity to achieve greater economic and health benefits under the law.

Notably, as a legally recognized married couple, Floridian same-sex couples can now qualify for both homestead and tenancy by the entirety protection for property.  In Florida, homestead refers to the constitutional protection of an individual’s home from creditors.  The Florida Supreme Court in Orange Brevard Plumbing & Heating Co. v. La Croix stated that its “design and purpose is to benefit the debtor by securing to him his homestead beyond all liability from forced sale under process of any court.  The case law of this state dictates that homestead exemption laws should be liberally applied to the end that the family shall have shelter and shall not be reduced to absolute destitution.” 137 So. 2d 201, 204 (Fla. 1962).

Tenancy by the entirety is a form of ownership only applicable to married couples, where each spouse holds the whole (or the entirety of the) property, and not a share or divisible part. This means that when one spouse dies, the surviving spouse automatically owns the entire asset.  In addition to property rights, married same-sex couples can also begin to file joint tax returns and make medical decisions for the other spouse. These are everyday decisions for many of us, and now all married residents of Florida can benefit from these protections.

For same-sex couples that choose not to marry, there are still some steps that you can take to protect your health and assets.  A good place to start is with life insurance.  By obtaining an effective policy and naming your significant other as the beneficiary, you can prevent a financial disaster when one partner passes away before the other.  In addition to life insurance, you can also designate one another as your health care surrogate and/or power of attorney.  By executing the proper document(s), if you get sick, your partner will be able to make major decisions about your welfare.  Moreover, you should also consider filing a hospital visitation authorization designation with your hospital.  Some hospitals may not recognize a same-sex partner as a close family member, and the hospital may deny you certain visitation rights with your loved one, even with a health care surrogate designation and/or power of attorney.  Lastly, if you are worried about your assets after you die, then you will want to consider a will or trust. You can choose to leave particular property to your partner in a will, or you can set up a trust for your partner, which will allow you to disburse certain assets to your partner through the term designated in the trust.

These are just some of the steps same-sex couples should consider now that everybody is free to marry in Florida.  Most importantly, if you are married, considering marriage, or just want to protect your future with a will or trust, then you should speak with a South Florida estate planning attorney.  The experienced professionals at Chepenik Trushin are here to assist you with all your estate planning needs.

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