Estate planning considerations for same-sex spouses

Estate planning is critical for same-sex couples so that they can ensure their wishes are carried out and that their children are legally tied to them both.

In Virginia, many same-sex couples want to plan for the future, and one way to do that is via trusts and estate planning. However, there are some considerations they should keep in mind that do not affect people who are married to someone of the opposite sex (or do not affect them as much).

Cover as many bases as possible, and start early

Unfortunately, many family members are not on board with same-sex marriage. Thus, someone's parent, sibling or child could decide to challenge a medical decision made by a same-sex spouse. Same-sex couples should take part in comprehensive estate planning that leaves no room for challenges to take root and prevail. It is better to be safe than sorry; for example, two young partners who do not anticipate needing a living will or advance directive should make one anyway.

Grief can do strange things to people, so even if someone's relationship with their family seems good, the "better safe than sorry" mantra still applies.

Have legal ties to children

When a same-sex couple decides to have a child together, they may both adopt the child and become his or her legal parents at the same time. However, the situation gets trickier if, say, one of the women in a same-sex marriage gives birth. The child could even be the biological child of the other partner (via IVF, for example), but the woman who gives birth would be considered the legal mother. Even if both women's names are on the birth certificate, that is no substitute for adoption. It can be done as part of estate planning, and it helps ensure that assets, property, trusts and the like pass on to the intended recipients.

Both parents having legal ties to their children also protects everyone in case the family moves to a state or country that is not as open-minded on same-sex issues. Perhaps more importantly, it ensures that if one parent dies, the child gets to stay with the other parent and does not end up with a relative who disrespects the parents' wishes.

Cut off loose ends

Then there is the fact that one or both of the partners may have been in a previous marriage or domestic partnership that is now legal in all 50 states. In many cases, if not most, that first partnership would take legal priority over the current one. So, a divorce may be necessary.

There is no doubt that same-sex couples in Virginia face some challenges that do not come up with opposite-sex couples. An attorney can help navigate these specific concerns.