We're very pleased to present the sixth in a series of articles about legal resources for same-sex couples. Our goal is to make sure that your gay or lesbian family is protected, both as you plan your gay wedding and continue your lives together. The article below was written by Claire Bartholome, who in addition to being an estate planning attorney, is also a client of 14 Stories.
Recognition of marriage confers hundreds of benefits applying not only to spouses, but to family and next of kin as well. With those rights, however, come responsibilities, and while we celebrate gains in equality no matter the consequences, same-sex couples should understand what true marriage “recognition” will mean for them. Over the next few weeks I will be discussing the mixed consequences of marital recognition for same-sex couples.
This week: spouses’ rights to inherit property. Generally, if an individual dies without a Will, his or her estate will be automatically distributed to a spouse and any issue or kindred (children or other family members). In states that recognize same-sex marriage, these rules apply equally to opposite-sex or same-sex couples. If an individual dies with a
Will, however, she or he cannot completely disinherit a spouse unless the couple signed a valid prenuptial agreement. As a result, a spouse is entitled to a share of the estate. This can introduce complications that have traditionally faced only opposite-sex couples.
In Massachusetts and Connecticut, a marriage revokes all previous Wills unless they were made specifically in contemplation of a marriage. Many same-sex couples previously drafted legal documents to protect one another and are now marrying later in life. If they wish to distribute assets according to their own wishes, not according to prescribed state statute, they must complete new Wills after marriage.
Keep in mind, however, that before gay marriage became legal, same-sex couples could omit a partner from a Will in order to benefit other children, individuals, or charities. Now that they are married, a spouse is entitled to a share of the estate even if she or he were omitted from the earlier Will. Certain government benefits, including MassHealth in Massachusetts, will consider the refusal of a spousal share as a gift to the other beneficiaries named in the Will, with dramatic consequences for eligibility (see last week’s post).
Same-sex couples with significant assets must also remember that federal estate tax law, and the federal definition of marriage, determines whether married couples can make tax-free transfers between spouses. Therefore, while an individual can leave hers or his entire estate to an opposite-sex spouse, which will only be taxed upon the death of the second spouse, this benefit is not available to same-sex married couples.
Remember, unmarried same-sex couples or couples in states that do not provide marriage equality may still provide for a partner in a Will. The presumption where there is not a valid marriage is for the individual’s parents or siblings to benefit when an individual dies without a Will. A non-married or non-recognized same-sex partner will be completely ignored as a matter of law.
Being treated as a married couple for the purposes of inheritance requires thoughtful planning, and the benefits of recognition are tempered by continued discrimination on the part of the federal government. These challenges, however, will continue to be a part of the fight for equality … for better or for worse.
Claire Bartholome is an Attorney with the Law Office of William J. Brisk. Her practice specializes in estate planning for same-sex couples in order to combat discrimination, legal challenges, and prejudice. This information is not intended to provide legal advice. For information as to how the laws apply to your specific situation, consult an attorney. www.briskelderlaw.com
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