Estate Planning For Same-Sex Couples – An Ever-Changing Area of ​​the Law


A current legal issue today is whether same-sex couples should have the right to marry. It seems like every new day brings in another court case, a piece of legislation, or the vote of the people on the issue. The rights that "heterosexual" couples take for granted – the right to inherit property from a spouse, the right to make medical decisions when loved ones can not, the ability to handle financial matters when A partner is unable – are changing for gay couples. Some States have unreservedly endorsed same-sex marriage, either by legislation or by court order; others have banned same-sex marriage, through legislation or a referendum vote. In states that do not allow same-sex couples to marry, there is a multitude of laws that may allow recognition of "significant persons" of the same sex in certain areas, but not in others. . and even in the most negative places, there are laws that same-sex couples can use to protect themselves and their loved ones.

In my humble legal opinion, if we honestly interpret the US Constitution, the government ("state action") can not deny fundamental civil liberties (eg, the right to marry) to a "suspicious class" "(Constitutional jargon for a class of people who have always been discriminated against, including women, minorities, people with disabilities and a multitude of other groups). On the other hand, religious institutions, to which the Constitution does not apply, can act as they please and refuse to marry same-sex couples. But the government simply can not discriminate.

I am hopeful that this legal quagmire will be solved among homosexual couples. favor in the near future and that same-sex couples will enjoy the same rights and responsibilities as heterosexual couples. (And as some histrionics claim, the world will not stop.) However, until this problem is finally and consistently resolved, it is imperative that same-sex couples take precautions to make sure that they are protected in case of calamity. In my practice of law, I have seen cases where the survivor of a homosexual couple was set aside while the family entered and took the assets of the deceased, because the deceased did not have a will. I have seen episodes where one of the partners could not participate in the medical decision making of the sick partner because there was no power of attorney for health care nor medical power of attorney. And I've seen guardianship proceedings that have resulted in fierce fighting between the incapable person's family and the long-time lover to know who is best placed to make decisions.

Not only is it important to protect against these inappropriate scenarios, but it is even more important to protect yourself and your partner, as same-sex laws evolve. What is the effect of the marriage of a homosexual couple if they move or live in another state? What is the effect of appearing on a national partnership register? Which states have what rights and protections? And if you divorces? And if children were involved?

Quite simply, same-sex couples can avoid these problems by planning in advance with the right professional. A well-prepared and executed will designating the heirs speaks loudly to the justice system, including how to treat children. Duly executed advance directives – proxies, proxies for health care, living wills and medical proxies – avoid the complicated scenarios described above. These legal documents – which must be part of the estate plan of each individual – must be prepared by a lawyer who practices in this area of ​​law, who can ensure that your wishes are fulfilled, especially as this area of the law remains in mutation.

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