LGBTQ+ Estate Planning

Estate planning is a constantly evolving area of the law. Cases are decided every day with regard to the interpretation of language stated in Powers of Attorney, Health Care Proxies, Wills and Trusts. The changes that we often see relate to calculation of the estate tax and the determination of the validity of techniques used to minimize the estate tax burden on families when a loved one dies. However, on occasion we see more profound and impactful changes. One of the most significant changes that we have experienced in recent years is the definition of the word “marriage”.

Traditionally, marriage was defined as a union between one man and one woman. In 1996, President Clinton signed into law the Defense of Marriage Act (“DOMA”), which defined marriage as the union between a man and woman for federal purposes.

Ultimately, DOMA was overturned. One of the earliest states to legalize same-sex marriage was Massachusetts when the Supreme Judicial Court ruled in 2003 in Goodridge v. Department of Public Health that a ban on same-sex marriage was a violation of the Massachusetts Constitution. Twelve years later in 2015, the Supreme Court of the United States in Obergefell v. Hodges ruled that the Constitution guarantees that same-sex couples had the same fundamental right to marriage as heterosexual couples, which extended to all states.

In July of 2022, the House of Representatives passed legislation entitled “The Respect for Marriage Act” which would officially repeal DOMA in its entirety. As of the date of this article, the Senate has yet to vote to support this act.

The redefining of the term “marriage” now provides same-sex married couples with the same rights as heterosexual married couples when it comes to estate planning. Some key estate planning implications include:

1. Estate tax marital deduction planning (and estate tax portability);
2. Spousal elective share rights;
3. Spouse’s status as an “heir” under the Massachusetts laws of intestacy;
4. IRA spousal “stretch” provisions for an inherited IRA accounts;
5. Homestead rights applicable to the primary residence;
6. Spousal rights to the home and certain additional assets under Medicaid (significant implications in the event of nursing home care)

Simmons & Schiavo supports the rights of same sex couples as well as transgendered and non-binary individuals and works regularly with the LGBTQ+ community. Schedule an appointment with Simmons & Schiavo to begin the estate planning process to protect your assets and your loved ones.