Same Sex Marriage and Estate Planning

On Jan. 5 2015, Florida became the 36th state to permit same-sex marriage.While this is a momentous victory, it comes with a new set of concerns for the happy couple. As with any marriage, once the ceremony is over, the couples must plan for the future. Being able to legally marry your partner is simply one aspect of the law.

1. Proper planning is even more important for same-sex couples when you consider that many same-sex couples have been living together, sometimes for decades, all the while purchasing properties, building assets, and co-mingling funds. The National Bureau of Economic Research estimates that about twenty percent of the modern work force identifies as gay, lesbian or bisexual. The Bureau further estimates that in one of every 10 same-sex couples, at least one partner is 65 or older. Given that Florida is both gay-friendly and elder-friendly, one would imagine those statistics to be much higher here.
2. What does all this mean? Now, more than ever, it is imperative for same-sex couples to speak with a competent and trustworthy attorney about getting these affairs in order. If you die without the legal protection of marriage and without a will or trust, the government — not you — decides who will receive your assets. The surviving partner may end up with high taxes, or nothing at all. Sadly, this is especially common in the case of same-sex couples where other family members may hold substantial legal power and hold grudges regarding the deceased’s lifestyle choices.
3. No matter your lifestyle, if you die without being married, your partner has very few rights. If you do not put your partner’s name on the deed to your house, checking account or list them as a beneficiary of an insurance policy, they could wind up with nothing. Unfortunately, in these situations, it is not uncommon for children or other relatives to swoop in and kick the partner out of the house, leaving them penniless.
4. Marriage affords the bereaved partner greater protection in most states, including Florida. However, if you choose not to marry, you still need proper estate planning to ensure that your wishes will be carried out. If your probate planning simply includes a will, you should remember that a will goes through probate and can be challenged by others — likely by disapproving family members.

While love is as old as time, the same-sex marriage law in Florida is new. As with any new changes in the law, the courts will have to resolve many intricate and novel issues. For example, will the law be retroactive as it relates to probate matters?