What Same Sex Marriage Means for Your Estate Planning
Same Sex Marriage Legalized in All 50 States:
On June 26, 2015, the U.S. Supreme Court ruled 5-4 that same-sex couples have the right to marry in all 50 states. The Court's historic decision in Obergefell v. Hodges held that states cannot deny applications for marriage licenses for same-sex couples, and states must recognize same-sex marriages that were legally entered into in other states. Same-sex married couples now have the same legal rights that opposite-sex couples enjoy.
What that Means to You:
If you are in a same sex relationship and you were already married in a state that recognized the marriage, or are now considering marriage, you should consider how this will effect your estate plan. Now is the time to change deeds, update wills and trusts, and make changes to the way bank accounts are held.
Changes to Deeds:
Married people can hold property in a special way only reserved for married people. This is called Tenants in the Entirety. When property is held as tenants in the entirety, each person ones 100% of the property. This has ramifications when one party dies, the property is sold, or creditors seek to exercise judgments. Same sex married couples should consult with an attorney about possible changes to deeds to real property.
Updating Wills and Trusts:
The best way to ensure your wishes are respected has always been to ensure you have an updated Will or Trust by an experienced attorney, but now is the time to make changes to reflect your new legal status. Married people have rights that cannot be assigned away in a will, such as an Elective Share in Florida. In addition to an entitlement to a share of the estate of their spouse, they are entitled to a life estate in their homestead. This may be particularly important when other beneficiaries may not support the same sex relationship.
Just like real property, bank accounts can be, but are not required or automatically held, as tenants by the entirety. This is an important protection from creditors as well as an estate planning tool.
Behind the right to inherit and insurance benefits, this is probably the next most important financial effect of same sex marriage. Prior to this Court decision, if you lived in a state that did not recognized same sex marriage, your non-homestead property was more vulnerable to creditors. Now all property held as spouses has certain protections. Speak to an estate planning and asset protection attorney to learn more.