The primary reason why it is important to have an estate plan in place, whether you have significant assets or not, is to ensure that your wishes are carried out in the manner that you choose. If you don’t record your wishes, the state is left to decide who will make health care decisions in your behalf should you become incapacitated. They will also determine how your assets will be distributed in the event of your death. Few if any of us want that, and this is why a comprehensive estate plan is a must for everyone.
However, same sex couples have an added incentive to draw up an estate plan because the laws in most states generally don’t acknowledge the legal validity of same sex partnerships. If you would like your partner to have the legal authority to make medical decisions in your behalf should you become incapacitated, you need to execute a durable power of attorney for healthcare. Additionally, you should include a visitation directive within the medical power of attorney or as a stand-alone document that authorizes your partner to visit you in the hospital. There are many cases where a partner has been denied visitation, and this can of course be a truly heartbreaking experience. A visitation directive can make sure that this does not happen to you.
Another factor that same sex couples have to consider is the fact that each individual can of course make out a will and leave all or any portion of their assets to their partner. But, a hefty estate tax is going to be levied, though there is an unlimited exemption for money bequeathed from one married partner to another. For this reason it is all the more important for same sex couples to get creative and consider a legal instrument like a revocable living trust to avoid probate and estate taxes.
As stated in the opening, very few people want to leave their affairs in the hands of the state. But same sex couples face unique legal challenges, making an intelligent and carefully crafted estate plan an absolute necessity.
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