Southwest Florida

Estate Planning for Same Sex Couples

same sex couplesNow that same-sex marriage is legal in every state, including Florida, I personally haven’t noticed that estate planning is generally any different now for same-sex married couples versus opposite-sex married couples. But this article does raise some valid points, which same-sex couples (married or not) should address when doing their estate planning.

  1. If you created your estate planning documents before you were legally married, you need to re-do them now. In Florida, spouses have statutory rights that significant others don’t.
  2. If you didn’t execute a prenuptial agreement before you were married, you may want to consider executing a postnuptial agreement or spousal waiver so you can bypass Florida laws and each leave your assets to whoever you want, in any amounts you want. This is especially important if either or both of you have children from other relationships.
  3. If you don’t have a valid Florida Durable Power of Attorney that authorized your spouse (or significant other) to make financial and legal decisions for you, someone will have hire a lawyer and go to guardianship court to get that power over you. It may not be the person you’d choose.
  4. If you don’t have a valid Florida Designation of Health Care Surrogate, Florida law will allow your spouse to make medical decisions for you when you can’t. (Your significant other has no legal rights). But what if your spouse is comatose in the bed next to you? Who will then be making your health care decisions? Florida statutes have a plan for you, but it may not be the one you want.
  5. If you don’t have a valid Living Will (also known as a Declaration to Die a Natural Death), Florida’s presumption is that you want to be kept alive using all available extraordinary measures. Without that document stating your clear-headed choice to die a natural death, you are forcing your spouse (and then whoever the state gives that authority to after your spouse) to decide whether you should live or die. No one should be forced to live with that decision; they (or your other family members) will second guess that decision forever.
  6. Many couples today have no human children, but have pets they love and care for as if they were their children. Have you made a definite, written plan for their care in the event neither of you can care for them due to death or disability/nursing home admittance? If not, the chances are very good they’ll end up in a shelter or euthanized. Leaving Fluffy to your niece along with $5000 in your Will is NOT a plan. She can legally take the cash and drop Fluffy off by the side of the road. Consider a pet trust, which separates the money from the care of the pet.

These suggestions apply to all couples, but same-sex couples may have some unresolved family dynamics that may make creating or updating an estate plan even more important.

Other articles you may find interesting:

Pet Trusts: Because Moose Isn’t an Xbox

Inheritance Distributions: Showing Your Children the Love

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