By Stephanie Taylor Christensen
Though same-sex couples are currently afforded the right to be legally wed or enter into civil unions in 13 U.S. states, federal rights that traditional married couples enjoy don't apply to such unions, and they certainly aren't extended to unmarried same-sex partners. As such, estate planning for same-sex couples is critical to ensuring that control over finances, assets, health-related matters, and even children, remains in the hands of the person you intend it to. Here are critical aspects of estate planning that all same-sex couples should attend to, regardless of their incomes or asset levels.
1. Create a Will
Though laws vary by state and jurisdiction, the bulk of assets are generally granted to a surviving spouse in the absence of a will. In lieu of a legal spouse, distribution goes to children, parents, grandparents, next of kin, or possibly, the state, based on the specific situation.
In the states that legally recognize gay marriage, surviving same-sex spouses are granted the same rights as heterosexual married couples, including distributions of assets when a will isn't in place. In those that currently recognize same-sex civil unions (Delaware, Hawaii, Illinois, New Jersey, Rhode Island), most of the same rules apply.
But because spouses and blood descendants are considered next in line for assets when a legal will doesn't exist, members of gay couples who haven't entered into either arrangement and don't have a will risk leaving everything to parties they never intended. Financial expert Cathy Pareto, founder of Cathy Pareto & Associates in Miami, says that "partners may inadvertently get disinherited, and do not automatically have a share in the estate."
If you're one of the estimated two-thirds of Americans without a legal will, make one without delay. Not only does a valid will help the surviving partner avoid costly probate and legal battles, it should address ownership of other assets, like deposit accounts, private pensions, survivor insurance benefits, and even guardianship of children, that may not be automatically granted to a surviving same-sex partner.
2. Arm Your Partner With Power of Attorney
According to the 2011 Healthcare Equality Index, an annual report from the Human Rights Campaign Foundation which measures hospital policies, "only 49% of respondents have an explicitly inclusive visitation policy granting equal access for same-sex couples, and just 52% have such a policy inclusive of same-sex parents." In other words, same sex couples who aren't legally wed or armed with valid power of attorney for one another and their children could be legally denied access if a loved one is hospitalized.
A durable power of attorney will effectively grant same-sex partners the ability to make decisions around medical care and finances as soon as it is signed. Both partners can also request Health Insurance Portability and Accountability Act release forms from health-care providers, which will authorize access to one another's medical information in the event it is needed.
3. Learn the Rules About Taxes and Titles
Because same-sex marriage is not recognized at the federal level, even legally wed gay couples must complete two separate sets of income tax documents. Further, health insurance coverage that members of same-sex couples may receive through their spouse's employer plan is considered taxable income by the federal government, even if the tax on it is waived by the state. The "two"-tax issue becomes even more complex when, for example, a same-sex couple applies for a mortgage together or education-related financial aid for a child.
Estate taxes at the federal level also play a significant role. By law, traditional married couples are allowed to defer some estate taxes if a spouse dies. Not so for same-sex nonmarried couples, says Pareto. "Any assets above $5 million are subject to 35% taxation rate." The same issue applies to property and asset transfers. Unlike traditionally married couples, same-sex partners are subject to a federal gift tax if it appears that one partner "gifted" more than $13,000 annually to the other, less some exceptions for medical and educational costs.
Property that is shared by same-sex couples creates a complex issue as well. If the title to property is in the name of one partner only, the other risks losing the property if rights to it are challenged in probate court after the death of the owning partner. While a "Joint Tenants With Rights of Ownership" agreement can establish shared ownership between same-sex couples, there are major tax burden scenarios, not the least of which might include hefty estate taxes on the entire value of the property if the surviving partner cannot prove having made contributions worth at least 50% of the property's fair market value.
4. Don't Take Retirement Plan Policies for Granted
While an increasing number of plans now allow a surviving partner to receive assets from a 401(k) and convert them into an inherited IRA to minimize taxes, a federally recognized marriage is still required to defer distributions. Likewise, Social Security benefits are not available to surviving partners in a same-sex relationship. Providers vary in their policies around beneficiary designations and benefits, so make certain you are aware of the rights you have with all retirement and investment plan providers, including employer-sponsored 401(k)s and private pensions.
5. Hire a Money Manager Who Understands Your Situation
Estate planning isn't limited to the wealthy, or even to those who plan to leave property behind. Working specifically with a wealth advisor who specializes in assisting same-sex couples can also help to ensure that plans and documents appropriately address your needs and are kept current throughout the rapidly changing political policies surrounding same-sex rights.
Interview potential advisors at smaller firms to understand exactly what the interest level and experience with planning for gay clients has been to date. If you opt to work with larger financial institutions, there are some with programs that are specifically tailored to same-sex couples. For example, Bank of America (BAC) specifically trains its US Trust and Merrill Lynch Wealth Management advisors to meet the unique financial needs of LGBT clients. In January of this year, Chicago-based Northern Trust (NTRS) also announced a "LGBT and Non-Traditional Family Practice" designed to address the different financial needs of same-sex couples and their families.
Two years ago, the College for Financial Planning, through a partnership Wells Fargo (WFC), announced a new professional education program and designation for money managers who completed a course in wealth planning for domestic partnerships -- ADPA, or Accredited Domestic Partnership Advisor. To find a financial planner with the special designation, visit the CFFP site.
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