Since 2015, same-sex couples in Florida have been able to marry, and a married couple is a married couple under Florida law whatever the sexes of the spouses. That settled a great deal. It did not make every family’s situation the same, and estate planning is where the differences show, because the law’s default rules are written for a particular shape of family: a legal spouse, children who are the legal children of both spouses, and relatives who get along. Where your family departs from that shape, the defaults have to be replaced by documents, titles, and designations that say what you actually intend.
Spiro Verras has advised LGBTQ clients for many years, and he teaches other lawyers on inclusive client service. The questions below are the ones that actually change the legal analysis. They are the questions we will work through together.
Marriage
Marriage carries rights that no document can fully duplicate: a share of the estate even against the will (the elective share), protections in the homestead, priority to serve as personal representative where there is no will, the ability to roll over a retirement account, and the unlimited marital deduction from estate tax. An unmarried partner has none of these by default. If you are unmarried, by choice or because marriage would cost one of you benefits, every one of those outcomes has to be created on purpose, in a will or trust, in beneficiary designations, and in how property is titled. If you are married, the question becomes whether the default rules suit you, and a prenuptial or postnuptial agreement is the tool when they do not.
Legal parentage
A child inherits from, and can be cared for after the death of, a legal parent. A parent who is neither the biological parent nor an adoptive parent may have no legal relationship to the child at all, whatever the birth certificate shows and however long the family has lived together. An adoption or a judgment of parentage closes that gap permanently; a will’s nomination of a guardian, a designation of the other parent as the child’s health care surrogate, and a trust for the child’s benefit close most of it in the meantime. We will tell you plainly which of these your family needs.
Chosen family
Many of our clients have built families of friends, former partners, godchildren, and the people who actually show up. Florida’s default rules do not know these people exist. If you have no will, your estate passes to relatives by blood or marriage. If you have no health care surrogate, the statute hands medical decisions to a spouse, then adult children, then parents, then siblings, and only after all of them to a close friend. The remedy is simple and complete: name the people you choose, in every document that names anyone, including as personal representative, trustee, agent under your power of attorney, health care surrogate, and preneed guardian, with alternates. A declaration of preneed guardian deserves particular attention, because it is the document a court looks to if a guardianship is ever needed, and without it the court will look to your relatives.
Decision-making authority
A durable power of attorney, a designation of health care surrogate, a living will, and a HIPAA authorization are the documents that let the person you choose act and be heard if you cannot speak for yourself. They matter for every client. They matter more where a hospital or a bank might otherwise defer to a relative who does not accept your family, and they are what make that deference unnecessary.
Beneficiary designations and ownership
Retirement accounts, life insurance, and accounts with payable-on-death or transfer-on-death designations pass by the designation, not by the will. An out-of-date designation, or a blank one, sends the asset to whoever the account agreement names by default. An unmarried partner who inherits a retirement account also faces different tax rules from a surviving spouse, and the account should be planned with that in mind.
How the home is titled decides who owns it the day after a death. Joint ownership with right of survivorship, an enhanced life estate (“Lady Bird”) deed, or a trust can each carry the home to a partner without probate; which is right depends on homestead rules, creditor exposure, and whether you are married, since tenancy by the entirety, with the creditor protection it brings, is available only to spouses. We review every deed and every designation as part of the plan.
Names and pronouns
Your documents, your signature, the notary’s record, and the titles to your assets should all agree. Where a client has changed names, we carry the prior name once, in each instrument’s opening recital, so that assets titled in it are reached, and nowhere else. Our questionnaire asks which pronouns your documents should use, and the documents use them.
Documents signed before 2015
Plans drafted before marriage equality often worked around the law rather than with it. Some of those workarounds now do harm: a trust drafted to avoid a spouse’s rights that the couple now wants to use, a deed that assumed the partner could never be a spouse, a beneficiary designation naming a parent. A review of the whole set is usually brief and usually worth it.
Every client receives the same careful drafting; that is what you are paying for. What differs is the analysis, and the analysis begins with the questionnaire on this site and an hour with Spiro Verras in Palm Harbor, or by appointment in Tampa or St. Petersburg.