Current Trends - Estate Planning for Same Sex Couples - Episode 199

Hey there, Legal Tea Listeners – This is your host, Jenny Rozelle. Welcome back for … EPISODE 199! Wow. Almost at 200 episodes. That is A LOT of episodes and time of me blabbing – next week, for my 200th episode, will be different, and I’ll get into that at the end of this episode. Alrighty, so here we are episode 199 and it is June 3rd – June is Pride Month and I thought it would be a timely topic to discuss estate planning for same sex couples. Let’s be honest—estate planning does not usually come up on any couple’s date night. But for those in a same-sex relationship, it is something that is often discussed sooner rather than later. Because even though the law has come a long way, there are still some quirks and complications that make it especially important to put your wishes in writing. So, that is what today’s topic is on – and like I said, be sure to tune in at the end to hear what I am going to do for my 200th episode next week!

Alrighty… so for starters, estate planning helps ALL types of couples, including same sex partners, protect what they have built together and make sure their wishes are honored. Even though federal law recognizes same-sex marriage, having a solid estate plan is still crucial to navigate potential hurdles and create real security for the future. Specifically for same sex couples, they benefit from creating clear, legally binding documents that outline their intentions regarding asset distribution and healthcare decisions.  

Speaking of healthcare decisions and financial management, healthcare directives and durable powers of attorney for healthcare ensure that partners can make medical decisions for each other if incapacitation occurs. Supplementing these with HIPAA authorization language or forms provides comprehensive protection during medical emergencies when healthcare providers might otherwise defer to biological family members. Similarly, financial powers of activate when needed, authorizing a designated agent—typically one's partner—to manage financial affairs during periods of incapacity. These basic healthcare and financial documents really just provide certainty that your spouse or partner will not face any hurdles or headaches in trying to navigate things on your behalf.

Beyond those basic documents, same sex couples should also consider planning involving a Last Will and Testament and/or Trust planning – depending on their goals, assets, family setup, etc. again to make sure intentions and wishes are properly documented in “legalese.” One question you may have is – do I do a Will or Trust? Well that is a VERY common question for all types of couples, but what I will say on this topic is that same-sex couples might want to explore the benefits of establishing a Trust. Unlike a Will, which may go through a probate court process, a Trust allows for the private and often more efficient transfer of assets to your partner or other beneficiaries. This can be particularly appealing for couples who value privacy. Furthermore, a Trust can provide for the easier management of assets if one partner becomes incapacitated, offering an additional layer of protection beyond a power of attorney.

Now, it is important to say that having a Will or Trust forms the foundation of a strong estate plan for same-sex couples, but it is honestly just the starting point. Same sex couples will want to make sure all assets are properly aligned with these documents—checking that beneficiary designations on retirement accounts, life insurance policies, and financial accounts directly name your partner (or align with the estate plan) where appropriate. When your assets and legal documents work in harmony, you create a smooth path for transferring what matters most to your partner, instead of leaving conflicting instructions that could create confusion. So, same sex couples should take time to review how property or properties are titled, consider consolidating accounts where practical, and document digital assets and accounts including passwords. These practical steps work alongside your formal documents to create a cohesive plan that truly protects both spouses, both partners. When everything points in the same direction, you dramatically reduce the potential for disputes, legal challenges, or administrative headaches during already difficult times.

Finally, it is also crucial for same-sex couples to regularly review and update their estate plans as well as double check to make sure all assets, including any new asset obtained after creating the estate plan, are in alignment with the total plan. Life circumstances change – relationships evolve, assets are acquired or sold, and laws can be modified. A good rule of thumb is to review your estate plan every three to five years, or sooner if there is a significant life event such as marriage, divorce, the birth or adoption of a child, or a major change in your financial situation. This proactive approach ensures that your estate plan continues to reflect your current wishes and provides the intended protection for your partner and loved ones.

Now shifting to something that I, as an attorney and law firm owner, have been asked about the stability of same sex couples’ marital rights – and that is … some same sex couples worry whether their marital protections could suddenly disappear, leaving their spouses/partners and/or their families vulnerable. These concerns are valid on an emotional level—especially considering the journey toward marriage equality—but I can offer some reassurance about the legal landscape. What I can say is that…

There are constitutional protections make it extremely difficult to undo established rights like same-sex marriage – Now, constitutional protections do not guarantee that all legal rights, once established, can never be changed going forward. However, it does provide significant protection against retroactive penalties or punishments for actions that were legal when performed. In the context of marriage rights, this principle would be one of several constitutional protections that would complicate any attempt to invalidate existing marriages. Further, any reversal would require either a new Supreme Court decision overturning Obergefell v. Hodges, which was the United States Supreme Court decision that made same sex marriage legal in ALL fifty states. To do that, you should know that while it is possible, the Supreme Court rarely reverses major rights decisions without compelling reasons. So, all of this to say, all this means that same sex couples would have substantial advance notice of any potential changes through years of legal proceedings and public debate.

But here's the really important part—even in a worst-case scenario, a solid estate plan gives you protection that exists completely outside of marriage laws. Through tools like trusts, powers of attorney, healthcare directives, and smart property ownership, those things we already talked about, you can create legal connections that honor your relationship regardless of what marriage laws say. Remember, these exact same legal tools protected unmarried couples of all kinds for generations before marriage equality became law. They worked then, and they still work now as an extra layer of security.

The most practical approach combines the protections of marriage with thoughtful estate planning. This dual strategy ensures that your wishes for your partner and family remain legally enforceable even if the broader legal landscape shifts. Think of it as wearing both a belt and suspenders—you're covered from multiple angles. This two-part approach makes sure your wishes for your partner and family stand on solid legal ground, no matter what legal changes might come down the road.

In conclusion, while the legal landscape has evolved significantly for same sex couples, the importance of proactive and comprehensive estate planning cannot be overstated. The foundational legal documents we discussed here, including wills, trusts, powers of attorney, and healthcare directives, offer crucial layers of protection that extend beyond the scope of marital recognition. By clearly articulating your wishes regarding asset distribution, healthcare decisions, and the well-being of your loved ones – you not only empower your spouse or partner, but also mitigate potential legal complexities, regardless of future legal shifts. The constitutional protections afforded to established rights provide a degree of reassurance, yet a well-crafted estate plan remains the most direct and reliable way to ensure your intentions are honored.

Moving forward, it is essential for same-sex couples to remain informed and engaged with legal developments while prioritizing consistent estate plan reviews. Consulting with an experienced estate planning attorney and maintaining a relationship with them is a vital step. This ensures your plan is not only legally sound but also tailored to your unique circumstances and goals. By taking proactive steps today, you are not only safeguarding your future but also providing peace of mind for your partner and the people you cherish. Embracing estate planning is an act of love and responsibility, solidifying the security and legacy you wish to create together.

Alrighty, so now that we are at the end of this week’s topic, I want to talk about next week’s episode – episode 200! For any of my long-time Legal Tea Listeners, you may remember when I hit the 100th episode, I reflected on the podcast, why I started it, the future of the podcast, etc. and so I did not want to do that again. Somehow, we have gotten through another one hundred episodes, so I was talking to AI and asked it for ideas on what to do for my 200th podcast episode to make it fun and different. Well, it gave me an idea to do an, what is called, AMA – or “ask me anything” about law, life, the podcast, whatever and I’ll answer as many as the questions as I get as I can in a 15-ish minute episode.

So, all of that to say, by the time you are hearing this, I have closed up the time to submit questions. For those that don’t know, I record these episodes a few weeks in advance, so by the time this episode drops, I have the 200th episode already recorded. So, just know that is what is going on next week – it should be fun! So, next week, Legal Tea Listeners, tune in for our 200th podcast episode. Talk to you then!

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