Thanks to the Supreme Court ruling in Obergefell v. Hodges, same-sex marriage is legal in all 50 states. This means that same-sex couples can create an estate plan that looks like one a heterosexual couple may create. It is just as important for a same-sex couple to make a will, which allows property to be allocated based on individual preference as opposed to state law.
The will can also determine who will take care of any children if something were to happen to the spouses. When drafting a will, it is a good idea to include a power of attorney that gives a spouse the power to manage financial or health care matters when an individual becomes incapacitated. Although many believe that the spouse automatically has this power, it is generally not the case unless the power of attorney is executed.
Same-sex couples should take estate taxes into account when creating an estate plan. On the federal level, the first $5.45 million in assets are exempt from taxes, and there are annual exemptions as well. While some states may impose estate taxes, most exempt the first $1 million in assets. As same-sex marriage laws could be overturned or modified at any time, it may be a good idea to also consider living wills and trusts as well as domestic partnership agreements.
Comprehensive estate planning today may avoid legal and other challenges in the future. A living trust may allow a parent greater control over who takes care of his or her children upon death or upon becoming incapacitated. Having a power of attorney may also ensure that an individual has his or her best interests protected at all times. Legal counsel may review existing documents or create new ones in accordance with state and federal law.