Same-Sex Marriage and Your Estate Plan

by Anthony M. Brown, Esq. – June 28, 2011

Estate Planning for same-sex couples in New York just got a lot more interesting.  While marriage equality is certainly welcome in the Empire State, there are now conflicting Federal and State guidelines that must be understood and incorporated into your overall estate plan.  Conflicts between these two governing interests must be resolved as best as possible and your estate plan must be a portable as possible.

A comprehensive estate plan must now properly define a marital relationship in a manner that will be respected by, yet not conflict with, the laws of the federal government and with the laws of states which do not recognize the NY marriage. 

It is also critical to understand exactly what rights and benefits your NY marriage will provide.  From intestate succession to priority status in a probate proceeding, marriage carries powerful protections for a surviving spouse and peace of mind for couples seeking to protect their families.

Other benefits of marriage include:

• The protection that divorce provides upon the dissolution of a marriage
• The ability to file joint state tax returns
• Exemption from State estate taxes for a surviving spouse
• Medical decision making and hospital visitation
• Public employee pension and health insurance benefits
• The ability to sue for wrongful death of a spouse and receive worker’s compensation for a spouse who is injured on the job

Getting married is an important and extremely personal choice.  You may feel compelled to marry because, “grow up, get married, have kids,” was the mantra you learned.  It is your choice.  Before marrying, you should also consider that gay-unfriendly states or countries might not recognize your marriage.  You may also become ineligible for means-based government assistance should the assets of your spouse be added to the eligibility calculation.   The immigration status of a spouse may be red-flagged due to a same-sex marriage.  Finally, many states and countries that allow single individuals to adopt, do not allow adoption for same-sex couples.  

Whether you decide to take advantage of New York’s new found marriage equality or not, if you are partnered, you must be proactive in your estate plan.  If you have any questions at all, please feel free to contact me at Brown@AWCLawyer.com.

Children are your greatest Asset

One of the  most important things that a will accomplishes is the appointment of a guardian for children.  Many parents feel that wills are unnecessary because they don’t have many assets.  This is untrue, the most important asset is a child.  If the parents pass away without a will the Courts decide who the guardian of the children will be.  Often the appointed guardian is not the person whom the parents would have chosen to raise their children.   A will is necessary  to ensure that your child is raised in the fashion and by the people you would want to raise them.