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Rights and Responsibilities of Marriage p3

We're very pleased to present the seventh 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: rights to health insurance benefits.  While married individuals are now entitled to extend employer-based health benefits to same-sex spouses in Massachusetts, it may not always be in the couple’s best interest.   

  • Generally, employer-based health insurance, even if it requires the employee to contribute to the cost of premiums, provides a significant tax savings since the employee’s portion is purchased with pre-tax dollars.  Federal law, however, considers the amount spent on providing health insurance coverage to a same-sex spouse is taxable income, so same-sex couples often owe more in taxes than their opposite-sex counterparts.
  • There is one exception to the general rule of federal taxation. If a same-sex spouse qualifies as a “dependent” under IRS rules without regard to his or her status as a spouse, the value of the benefit to the “dependent” is not taxed as wages to the employee.  Also, in states that recognize the marriages of same-sex couples, there is no state income tax on the value of spousal health insurance benefits.
  • Some same-sex couples actually pay less overall by maintaining separate health insurance coverage either through employers or by purchasing individual plans.  In Massachusetts, individuals can compare the cost and coverage of health insurance plans online at www.mahealthconnector.org.
  • LGBT Families must also consider how to cover dependent children.  If parents maintain two separate health insurance plans, they must research the impact of adding children to either plan.  Note also that if the children were not born to one of the spouses during the marriage or if only one spouse is the children’s legal parent, the non-parent spouse will not be able to add the children to her health insurance plan.
  • If same-sex couples receive benefits through an employer-sponsored domestic partnership plan, specifically for unmarried couples, then marriage may disqualify an individual from benefits. Same-sex couples should check in advance with employers to ensure that they are covered one way or another.
 
Being treated as a married couple for the purposes of obtaining health insurance is tempered by continued discrimination on the part of the federal government and some employers.  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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Rights and Responsibilities of Marriage p2

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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How Can Trusts Protect the LGBT Family?

We're very pleased to present the fourth in a series of articles about legal resources for same-sex couples.  They will be posted every Wednesday.  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.

While basic Estate Planning, involving simple joint ownership, may solve some problems and avoid costly, time-consuming probate, Estate Planning for same-sex couples requires additional care.  Transfers of property to an opposite-sex spouse are fully exempted from both Federal estate and gift taxes, but since the IRS uses the Federal definition of marriage, this exemption does not apply to same-sex couples.  

Even if property is held jointly, the IRS includes the entire value of the property in the estate of the first owner to die unless the surviving owner can provide evidence of contribution to the acquisition of the property; this issue does not exist for married opposite-sex couples.   

While Trusts are commonly used in Estate Planning for opposite-sex couples, they may be particularly important tools for same-sex couples because: 
  • Trusts help to keep your wishes private because they avoid probate; they involve only the Trustee and beneficiaries, not the court.
  • Irrevocable Trusts can protect assets from creditors, but require relinquishing authority over assets.
  • Well-crafted Trusts are difficult for third-parties to contest and are therefore more resilient against attack by hostile family members.
While some tax-sensitive Trusts are ideally suited for couples with sizeable assets, many basic Trusts allow couples to avoid probate and protect the interests of their loved-ones.

  • For couples with significant assets, an Irrevocable Life Insurance Trust can shelter policy proceeds from estate taxes regardless of marital status.
  • A Testamentary Trust can support a surviving spouse without jeopardizing eligibility for important government benefits.
  • A Credit Shelter Trust applies the exemption from either State or Federal estate tax available to all persons regardless of marital status, minimizing the tax on passing on the combined assets at the death of the second spouse/partner.
  • A Grantor Retained Income Trust can transfer wealth at a discount from the wealthier to the less wealthy spouse or partner in same-sex couple relationships.
It is important, however, to consult with an attorney who is not only well-versed in the language of Trusts, but also sensitive to the needs of same-sex couples since some commonly-used Trust structures rely on the Federal definition of marriage and therefore will not work for same-sex couples.

    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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