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

The modern family can take many forms - from the traditional heteronormative nuclear family, to same-sex couples, to long-term cohabitating couples and cohabitating groups (think of The Golden Girls, Friends, or Fuller House) without legal or biological relationship, to grandparents raising a grandchild via an informal custodial arrangement, to families adjusting to a trans parent's gender identity, to polyamorous relationships (throuples, triads, quads, moresomes, etc.), and to diverse mixes of all of the above. What all these families have in common are bonds based on love and affection, but they differ widely in legal status. As an LGBTQ+ inclusive law firm and one of the largest gay-owned businesses in the Tampa Bay Area, Verras Law has always provided legal services to all clients: straight, gay, lesbian, bisexual, transgender, queer/questioning, intersex, asexual, and non-binary, even as the law governing non-heteronormative relationships and families has dramatically changed.

In the past, gay and lesbian couples were unable to take advantage of the benefits available for heterosexual married couples. That changed rapidly 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). Enacted in 1996, DOMA provided that the federal government could not recognize same-sex marriages. By holding it unconstitutional, the Windsor Court held that same-sex couples legally married under state law became entitled to all the same retirement and government benefits, immigration rights, and tax benefits that were previously available only to opposite-sex couples. In Windsor, the primary benefit examined was that of an estate tax advantage granted only to married couples. A U.S. citizen does not have to pay any estate tax on any 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 a significant federal estate tax after receiving a bequest, if it exceeds the unified gift and estate tax exemption (presently $11.58 million). When Edith Windsor's wife Thea Spyer died in 2009, the U.S. Internal Revenue Service billed the widow $363,053 in federal estate taxes on her inheritance of her wife's estate. The facts presented a clear case of discrimination resulting in quantifiable economic harm: If Edith Windsor had been a man married to Thea Spyer, she would have owed no estate tax to the IRS regardless of the size of Thea's estate. Consequently, Edith Windsor sued the U.S. government for discriminating against her, and won.

The Supreme Court's subsequent 2015 Obergefell v. Hodges decision expanded on the Windsor holding by ruling that the freedom to marry is a fundamental right of all adults. The Obergefell decision overturned all of the remaining same-sex marriage bans in the United States on the basis that such bans violate the civil rights of gay and lesbian couples under the U.S. Constitution. On the basis of Obergefell, the courts have further held that the states cannot discriminate against gay and lesbian people with regard to the adoption of children.

Although married 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 as tenants-by-the-entireties, homestead protection, elective share rights (entitlement to receive a minimum inheritance from spouse), family allowance, as well as spousal Social Security and other 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 funeral and burial decisions to the surviving non-traditional family instead of the deceased's 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
14653 Canopy Drive, Tampa, Tampa, FL 33626
| Phone: 813-228-6800
360 Central Avenue, Suite 450 - Compass Land & Title, St. Petersburg, FL 33701
| Phone: 727-892-6050

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