California Estate Planning for Same Sex Couples

Q: Why do same-sex couples need estate planning?

After decades of fighting the good fight, the LGBT community scored a major victory when it won the constitutional right to marriage equality in the 2015 United States Supreme Court decision in Obergefell vs. Hodges.

The landmark decision conferred valuable federal privileges and rights upon same-sex married couples, similar to those enjoyed by heterosexual married couples.  But just as it is inadvisable for heterosexual couples to die without wills, estate planning for same-sex couples is equally, if not more, important.

Before the landmark decision, states could choose whether to legalize same-sex marriages. Same-sex couples who lived in states that did not recognize same-sex marriage would often travel elsewhere to get married and then return or settle in a state that didn’t recognize their marriage. Some of these couples later broke up and many may have wrongly assumed their marriages weren’t valid and that a formal divorce was unnecessary. So, one of the first things a same-sex couple should do is confirm their true marital status, especially if one or both partners were previously married.

When someone dies intestate—which means “without a will” –their property passes to their surviving relatives in accordance with their state’s intestacy statute. The first question asked in such a case is whether the decedent was married or not. Based on that answer, the property is divided up in percentages among the decedent’s closest relatives, depending upon whether they left a spouse, children, parents, and/or siblings behind.

Absent a valid marriage or registered domestic partnership, same-sex couples without a valid estate plan will find their non-community property bypassing their surviving partner and landing in the hands of blood relatives they may or may not wish to inherit it—including relatives from which they may long be estranged.

In addition to wills and/or trusts disposing of their property upon death, LGBT couples should avail themselves of other common protections which are part of a comprehensive estate plan. Comprehensive estate planning includes planning for disability, not just death.

In the arsenal of estate planning documents that can accomplish this are powers of attorney that confer the power to make financial decisions on your behalf and healthcare proxies that confer the power to make medical and healthcare decisions on your behalf in the event you are incapacitated and unable to do so yourself. Finally, a living will allows you to specify your preferences about the medical treatment you would like – – or would not like – – in the event you become unconscious, incapacitated, or disabled and unable to express these wishes.

If you are a same-sex couple, married or not, and need assistance with an initial estate plan, or would like to revise an existing estate plan, Biddle Law can help. Contact us today for a free 15-minute consultation.

From our offices in San Mateo and Belmont, California, we help protect the financial security of families and their loved ones throughout San Mateo, Burlingame, Foster City, San Carlos, Redwood City, and Belmont.