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Estate planning considerations for same-sex couples

This past summer, gay rights proponents across the country celebrated as the U.S. Supreme Court chose to strike down the Defense of Marriage Act. As a result, marriage is no longer legally defined as being solely between one man and one woman. With the overturning of DOMA come huge social, political and legal changes to how the rights and assets of same-sex couples are recognized and distributed.

While DOMA serves to ultimately benefit all gay individuals, it only directly impacts those individuals who are legally married. There are currently 14 states that legally recognize same-sex marriage. New York State is one of these states and as such, same-sex couples living in the state are now afforded the same privileges that married heterosexual couples have enjoyed for years.

Provided a couple lives in a state that recognizes gay marriage, assets without beneficiary designations should pass directly to a living spouse. To avoid additional costs and a lengthy probate process, however, it's still important that a gay couple take the time to establish a comprehensive estate plan.

While some assets may still be required to pass through the probate process, most can pass directly to a spouse or intended beneficiary provided an individual plans accordingly. For example, naming a spouse as the primary beneficiary on retirement accounts and insurance policies ensures assets held in these accounts pass directly to a surviving spouse. Likewise, property should be held jointly with the right of survivorship ensuring that if one spouse dies the home or property passes directly to the surviving spouse.

There are numerous estate planning matters that same-sex couples must consider. An attorney who has experience helping individuals and couples draft and maintain their estate plans can provide advice and assistance.

Source: The State, "Married same-sex estate planning evolving," Ashleigh Brooker, Nov. 9, 2013

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