SAME SEX COUPLES HAVE TAX BENEFITS AND INHERITANCE RIGHTS — sort of : a continuing update on the death of DOMA and probate rights for gay marriages

Uncategorized • Feb 25, 2014

Spouses of gay marriages should be talking to their accountants and tax advisers well before April 15 to take advantage of any income tax benefits which may now be enjoyed by same sex couples. When the US Supreme Court overturned DOMA (defense of marriage act) last June, it meant that same sex spouses could not get tax benefits previously only given to hetero couples. You should also talk to your Florida estate planning attorney about wills, trusts and estates: and inheritance rights and probate rights. Don’t you want to take advantage of the unlimited marital deduction for estate tax purposes?

Q: what if your spouse, husband or wife, dies…..and there’s no will ? Do you inherit ?

Q: what if your spouse dies and there’s an old will —- which doesn’t name you or leave an inheritance to you ? ( Do you have rights ? Fargo: “You betcha !” )

…………….But what about inheritance rights?

US Attorney General Eric Holder was reported to have suggested that state attorneys general need not defend state laws which ban same sex marriage. Put another way, AG Holder seemed to hint that AG’s from states that have laws which don’t recognize, or even outlaw, gay marriage, need not uphold the law.

Florida is one state that outlaws same sex marriage. No gay marriage in the sunshine state: for now. Gay couples are already getting married, or trying to, and are filing suit to have their same sex marriages recognized: legally, by the state of Florida.

The bigger issue for gay couples is inheritance rights. Worth , like BILLIONS ! (Seriously ) DOMA has been overturned. The Constitution and the US Supreme Court are on the side of keeping DOMA dead, and also supporting same sex marriage. This means that there’s a lot more available to gay spouses than just income tax benefits: there’s Florida inheritance rights, or Florida probate rights.

Florida provides a Florida widow, or a surviving spouse, with very valuable estate rights. Probate rights.

Florida family allowances are distributed to a Florida widow during the Florida estate administration process: it can be up to $18,000. Do you know how to get it?
Widows have rights to the Florida residence, called homestead.
Then there is the guaranteed 30% inheritance called a Florida Elective Share for a Florida surviving spouse.
And your guaranteed Florida inheritance can get up to 50% or 100% of the estate depending on a number of variables — just by being a spouse !!

So, you see that while getting a marriage license or a getting a federal income tax deduction are both important, Florida inheritance rights are valuable.

Want that Ft. Lauderdale house on the water ? You might just get it —even if it “goes” to someone else in the Florida will.
All your dead spouse’s money is in his or her Florida revocable trust ? So what. You can get a piece of that trust.
Autos? Same.
You say your husband or wife died with an old Florida will which pre-dated your marriage ? We don’t care. Florida law doesn’t care: you still inherit something.
But you DON’T inherit from a Palm Beach estate or a Broward County trust if you WAIVED your inheritance rights under Florida law. If you signed a prenup or other contract, you may have given up your rights to inherit from the Florida estate or trust.

Consider talking to a Palm Beach estate litigator or a Ft. Lauderdale probate attorney in addition to your divorce lawyer, or family lawyer. Palm Beach probate litigation lawyers and Estate Litigators are wondering when the first gay spouse will be asserting Florida estate rights, or Florida inheritance rights, in a Palm Beach probate or a Broward Probate. Get good advice on your rights to the Palm Beach probate or the Florida trust. Your rights may be more valuable than that you believe. Oh yes….. your rights as a surviving spouse: there’s no duration of marriage requirement. It does not matter how short your marriage was ! You get Florida inheritance rights as one part of a married couple if you were married for 50 years, or 50 seconds.