Tampa & St. Petersburg Estate Planning for Non-Traditional Families

The modern family can take many forms - from the traditional heteronormative nuclear family, to long-term cohabitating couples and cohabitating groups (think of The Golden Girls, Friends, or even Fuller House) without legal or biological relationship, to grandparents raising a grandchild via an informal custodial arrangement, to same-sex couples to diverse mixes of all of the above.  What they all have in common is a bond based on love and affection, but they differ widely in legal status.

In the past, same-sex couples were unable to take advantage of the benefits available for heterosexual married couples. In the wake of the Supreme Court’s 2014 ruling in Windsor v. United States on the constitutionality of the Defense of Marriage Act (DOMA), however, same-sex couples married under state law became entitled to the same retirement and government benefits, immigration rights, and estate tax exemption previously available only to opposite-sex couples. The Supreme Court's subsequent 2015 Obergefell v. Hodges decision overturned all of the remaining same-sex marriage bans in the United States, holding that such bans violate the civil rights of gay families under the U.S. Constitution.

The DOMA ruling only affected federal benefits and only applied to couples married under state law. In Windsor v. United States, the primary benefit examined was that of estate tax protections for married couples of the same sex. A U.S. citizen does not have to pay any estate taxes on any real estate or assets received from his or her spouse, either as a gift during life or as a bequest after death.  In contrast, anyone other than a spouse may have to pay significant state and federal estate taxes after receiving a bequest, it exceeds the unified gift and estate tax exemption.

Although same-sex couples are now legally treated the same as heterosexual couples, the same is not true of other non-traditional families. Such loved ones, though we may consider them family members, are not granted the same privileges to which traditional family members are entitled with respect to inheritance laws, state gift and estate taxes, immigration rights, guardianship of minor children, and health care proxy designations.

Only legal spouses are entitled to significant marital rights such as: ability to own property by tenancy-by-the-entirety, homestead protection, elective share rights (entitlement to receive a minimum inheritance from spouse) as well as spousal retirement and government benefits.

An estate planning attorney can implement various strategies to safeguard non-traditional families in matters including: 

  • Protecting ownership of the family home
  • Protecting custody of the family’s minor children
  • Protecting the surviving family members' right to manage the finances of the family’s minor children in the event of the death of a loved one
  • Protecting family members’ rights to make medical decisions for their partners and minor children
  • Protecting family members’ rights to make financial decisions in the event one family member becomes incapacitated
  • Ensuring that state probate laws do not override the family’s wishes regarding inheritance
  • Correctly designating beneficiaries on life insurance and other policies
  • Minimizing the impact of estate taxes and income taxes on the surviving family members
  • Planning for and minimizing will contests by blood relatives who may be unhappy with the decisions and bequests made in wills and other estate planning documents
  • Burial instructions, or granting the right over burial decisions to the surviving non-traditional
    family over other blood relatives
It’s important that non-traditional families carefully consider their situation and available options based on consultations with an estate planning attorney familiar with such issues.  At the conclusion of a successful estate planning process, you and your family will be armed with the necessary knowledge and legal documents to ensure that you will be in control of inheritance and other vital matters impacting your family.

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31640 U.S. Hwy. 19 N, Suite 4, Palm Harbor, FL 34684
| Phone: 727-493-2900
1609 W. De Leon Street, Third Floor - Santos Mediation, Tampa, FL 33606
| Phone: 813-228-6800
360 Central Avenue, Suite 450 - Compass Land & Title, St. Petersburg, FL 33701
| Phone: 727-892-6050

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