Estate Planning for Same-Sex Couples

While same-sex marriages are recognized in Oregon, same-sex marriage rights are still a relatively recent development within the United States. When it comes to estate planning for same-sex couples, there are unique challenges for couples who previously entered into domestic partnerships or civil unions. Generally, to receive recognition from the IRS and the majority of federal programs, a couple must be legally married. Couples who have only registered as domestic partners still enjoy all rights at the state level, but would be ineligible for most federal benefits.

Oregon’s intestacy laws may also pose a problem for same-sex couples. Should an individual die without any estate plan, the surviving spouse may be excluded from inheritance entirely as the deceased partner’s assets would be bequeathed to blood relatives. To protect same-sex couples from these and other circumstances such as the risk of family contest over inheritance, use of a Revocable Living Trust can designate that such same-sex partner inherits the entirety (or whatever is desired by the other spouse) of the deceased spouse’s assets.

While distribution of assets is often thought of the seminal issue in same-sex marriage estate planning, it is not the only reason. With comprehensive estate planning, same-sex couples can also provide guidance for healthcare decisionmaking in the event of incapacity, provide for guardianship of minor children, achieve philanthropic and charitable goals, clearly communicate wishes concerning funeral and burial arrangements, and minimization of estate tax exposure.

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