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Caring For Generations

For LGBTQ Couples, Trusts Might Trump Wills

On Behalf of | Jul 10, 2019 | Uncategorized

estate planning for same sex couples

For same-sex couples, trusts may offer better asset protection than wills, advises, and that might prove especially true when an LGBTQ couple’s relationship is not supported by one or both of their families. When a will goes to probate, family members may contest the will, jeopardizing the surviving spouse’s inheritance.

We at Geyer Law agree; planning for same-sex couples, both married and single, continues to evolve at a rapid pace, and protecting the interests of both partners and of any children becomes the primary goal in any legal, estate, and financial planning.

Basic estate planning steps include:

  • naming each other as beneficiaries of wills and trusts
  • specifying the exact nature of the relationship (married, single cohabiting partners, co-adoptive parents)
  • specifying preferences for final arrangements

Basic areas our estate planning attorneys will include in the planning for same-sex partners include:

  • income tax filing
  • gifts
  • inherited IRAs
  • pension plans and ERISA requirement
  • Social Security benefits

Couples who have moved from the state in which they were married no longer need be concerned that their marriage might not be considered legal in their new place of residence, because the U.S. Supreme Court struck down all state bans on same-sex marriage, requiring all states to honor  same-sex marriage licenses regardless of which state the marriage was performed.

On the other hand, the annual divorce rate for same-sex couples is similar to, though slightly lower than, the rate for different-sex couples, as Jenn Doll reminds Atlantic readers, making prenuptial planning every bit as important for LGBTQ pairs as for different-sex couples.

The reason setting up a trust can be such a big help for same-sex couple planning, Tina Orem of adds, is that “families are more apt to contest the will of same-sex couples than is the case with heterosexual couples because more LGBT people tend to be estranged from their birth families.” When one of the couple dies, there is less of an opportunity to contest the distribution, because trusts typically don’t go through probate.

– – by Rebecca W. Geyer