After the 2015 case Obergefell v. Hodges, same sex marriage is legal in all 50 states and comes with the same advantages that opposite-sex marriages do, such as tax considerations, intestacy law, and even in hospitals when only family is allowed to see the patient. All estate planning that is effective for heterosexual married couples now works in the same way for homosexual married couples. Issues of portability and marital deductions, to list a few examples, are treated the same way for all married couples, regardless of sex. Just like any other couple, same-sex couples should have the basic estate planning documents: Wills, Durable Powers of Attorney, Living Wills, and Designations of Healthcare Surrogate. These documents can name anyone, but as same-sex marriage is now legal, all couples who are married may refer to their partner as “spouse” and there will be no confusion.
Even so, unmarried same-sex couples require more advanced planning. Like any unmarried couple, there is no portability or marital deduction, and nothing will go to the partner in the case of passing intestate (dying without a will). Therefore, it is even more critical to have the necessary estate planning documents in place if the couple is unmarried. Without these documents, the partner of the descendant will not have a claim over any assets and could very likely receive nothing and have no decision-making ability in the event of an emergency. Especially for same-sex couples, the people that do have the ability to make decisions (e.g., family members) by state statute may not be aware of the relationship and assume it is platonic and not a romantic partnership, causing further grief.
This said, one major issue that the Supreme Court did not address in 2015 and continues to be a planning issue is children. Currently, it is not scientifically possible for a same-sex couple to both be the genetic parent of the same child. Other than adoption of a child that is not biologically either spouse’s, the typical solution is for the egg or sperm of one spouse to be used and a third party donor for the remaining required cell. What does this mean for the spouse that is not biologically related?
After a Florida case in 2015 to seek enforcement of the law, both same-sex parents are now permitted to be listed on the child’s birth certificate. While this does not solve all the potential legal issues, it does help with the day-to-day issues, like registering a child in school and being recognized as a parent by the school.
The simplest way around this and all legal issues is for the non-biological parent to adopt the child. This gives the parent all the legal rights he or she would otherwise have if there was a biological relation. Adopted children are treated the same as biological children for estate planning and tax purposes. It is no different than adopting a child with whom neither parent is biologically related.
However, there are some additional concerns for same-sex couples in conceiving a child that heterosexual couples who are unable to have children face as well. Sperm donors and some types of surrogates have given up all legal rights to any children born from their donations, assuming a preplanned adoption agreement has been signed as required. However, a female surrogate retains more rights if her egg is used and she carries the child. A surrogate in this scenario can renege on the arrangement within 48 hours of the birth and decide to keep the child, regardless of a preplanned adoption agreement: an upsetting idea to any couple. That is why it is extremely important to select a surrogate the couple trusts completely.
For more information about estate planning and advance directives, please contact Morris Law Group at (561) 750-3850 to schedule a consultation with one of our attorneys.