LGBTQ Estate Planning


LGBTQ Estate Planning 

Same-Sex Couple Concerns

Los Angeles, CA

Estate Planning for Gay and Lesbian Couples [L.G.B.T. Community] Same-Sex Couple Concerns

Important Legal Developments Relating to Same-Sex Couples

In 2013, in United States vs. Windsor, the United States Supreme Court ruled that legally married same-sex couples are entitled to the same advantages that opposite-sex couples enjoy under income tax, estate, and gift tax laws, including the marital deduction. In 2015, in Obergefell vs. Hodges, the United States Supreme Court ruled that same-sex couples have a constitutional right to marry, and that a same-sex marriage that is valid under the laws of one state must be legally recognized in all 50 states.

LGBTQ couples who have an estate plan that was prepared prior to these court decisions should have their existing estate plan(s) evaluated by an estate planning attorney who is up-to-date on these important developments affecting same-sex couples. If necessary, Velasco Law Group can update separate estate plans (or create an entirely new joint estate plan) to ensure that each plan provides the same advantages that have been the basis for opposite-sex couple tax planning for generations.

Concerns for Same-Sex Couples Who Are Not Legally Married

A same-sex couple that is not legally married under the laws of California or another state, but in a domestic partnership registered in the state of California, or living together with no legal recognition of the relationship, will not be able to take advantage of the same federal tax laws that favor legally married couples. While there can be reasons for couples not to be legally married, it is important to understand the implications and effects of that choice. Proper estate planning can ensure, for example, that non‑married same‑sex partners will have the legal right to make health care decisions for each other (including visitation rights, if one partner is in a health care facility), and that their assets will be distributed in accordance with each partner’s wishes when he or she dies. However, the federal government does not recognize these kinds of relationships for income tax, estate tax, and other purposes. Thus, partners in a non-marriage alternative forfeit many important tax advantages that are available to married couples.

Couples in Domestic Partnerships and Other Non-Marriage Relationships

Some same-sex couples may have entered into a domestic partnership, civil union, or another non‑marriage alternative that is valid under the laws of another state, and then moved to California. However, the rights and responsibilities of domestic partnerships or civil unions vary widely from one state to another (including whether that non-marriage alternative is legally recognized in California.) If that is your situation, then we urge you to meet with one of our estate planning attorneys, who can advise you as to whether the legal status of your current relationship furthers your estate planning goals, or hinders them.

Couples Who Are Considering Marriage

We also encourage same-sex couples to speak with one of our attorneys prior to committing to marriage or domestic partnership, to ensure that both partners are fully aware of the advantages and disadvantages of each.

Estate Planning for Single LGBT People

Though the most significant changes in estate planning for LGBT people have occurred in the area of same-sex marriage, proper estate planning for single persons is perhaps even more crucial. Failure to prepare an estate plan at all could cause a person’s legal heirs to inherit their assets when he or she dies – regardless of whether those heirs were loving and supportive during the person’s lifetime. Our attorneys consider the comprehensive picture of each client’s assets (including assets that pass by beneficiary designation, such as IRA’s, annuities, and other retirement plans) to create a well-thought out estate plan that ensures that the client’s assets are distributed to the individuals and/or charities they wish to benefit.

If you are in any of the situations described above, we invite you to call us to schedule an appointment to review your existing estate plan, or to discuss preparing your first estate plan.

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