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Monday, March 23, 2020

Unique Estate Planning Issues for LGBTQ Couples

How can I protect my non-biological child?

A comprehensive estate plan is important for everyone who wants to protect their assets and family, but it is even more critical for same-sex couples to create certain estate planning documents so that they are fully protected. In 2015, the United States Supreme Court passed a landmark ruling legalizing same-sex marriage for same-sex couples. This ruling afforded same-sex couples vital protections that heterosexual couples long took for granted, but it did not eliminate the need for some extra care when it comes to estate planning. Our Tampa, Florida estate planning lawyers discuss some unique estate planning issues for LGBTQ couples below.

Review Estate Planning Documents Drafted Before 2015

Prior to 2015, same-sex marriages were not recognized on the federal level. It is important for any same-sex couples who created an estate plan prior to 2015 to now review that plan to ensure it still conforms to the most current laws. Older estate plans may not have taken full advantage of tax benefits now afforded to same-sex couples. For instance, same-sex couples can now benefit from the unlimited marital exemption for federal gift and estate taxation. Further, same-sex couples can now roll over assets from their retirement account to the surviving spouse’s account, without the need for minimum or lump sum distributions. In reviewing your older estate plan, you can ensure you are taking full advantage of all tax benefits not previously open to you.

Even further, before same-sex marriage was federally recognized, same-sex partners may have entered into a variety of legal arrangements, including civil unions and domestic partnerships. Some states elevated these arrangements to marriage, opening the possibility that some couples were legally wed without realizing it. Explain any prior arrangements to your estate planning attorney for guidance on the matter.

Special Consideration Should Be Given to Non-Biological Children

One of the most unique considerations for same-sex couples with children is protecting their non-biological children. When one partner is the biological parent and the other is not, the non-biological parent will want to consider adopting the child to establish a legal relationship. This is especially important if the child was born before the parents wed. All parents, regardless of their sexual orientation, will further want to create a will that includes a designation for a guardian over their minor child in the event of the death of both parents. LGBTQ couples will want to find an estate planning attorney knowledgeable in non-traditional estate planning cases to help protect their legal rights.


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