Adapt Estate Planning Strategies To Fit the Needs of Same-Sex Couples Practical Tax Strategies Journal (WG&L)
October 27, 2009

ADAPT ESTATE PLANNING

ADAPT ESTATE PLANNING STRATEGIES TO FIT THE NEEDS OF SAME-SEX COUPLES

The need for a properly constructed will gains importance as intestacy laws do not recognize same-sex partners, and the unlimited marital deduction is inapplicable to these couples. Author: JOSEPH R. POZZUOLO and LISA A. LEGGIERI JOSEPH R. POZZUOLO is the senior shareholder of Pozzuolo Rodden, P.C. Counselors at Law in Philadelphia, Pennsylvania, and a member of the American Bar Association's Committee on Taxation and the Philadelphia Bar's Section on Corporation and Business Law. LISA A. LEGGIERI is an associate at Pozzuolo Rodden, P.C. Counselors at Law and is currently completing an Estate Planning Certificate program at Temple University's Beasley School of Law. According to the Census Bureau's 2005-07 American Community Survey, 781,267 same-sex couples are currently living together in the U.S. The Williams Institute, the research arm of UCLA's law school, predicted that if gay marriage were legalized across the entire country, half of those same-sex couples would get married within three years. 1 Those who married would be afforded approximately 1,049 distinct federal rights, benefits, and responsibilities that heterosexual married couples currently enjoy.

2 Given these statistics, one would assume that a same-sex couple in a loving, committed, and long-term relationship would be eager to prepare an estate plan; however, this is not always the case. In many instances, same-sex couples often assume that regardless of their relationship status, their legal rights will be protected, when in reality this is not true.

3 Thus, an estate plan is essential for same-sex couples. However, estate planning issues for same-sex couples are far more convoluted and complex than those of the average married couple and require a more sophisticated understanding of estate and tax law to enable a same-sex partner to make critical health and business decisions on behalf of his or her significant other, minimize taxes, protect assets, and structure an overall succession plan. Also, because of the broad spectrum, or lack thereof, of marriage rights afforded to same-sex couples across the nation, a prudent advisor who is counseling and creating an estate plan for a same-sex couple should be careful to advise that certain documents may still be found unenforceable if the couple is domiciled in a state that extends no rights to same-sex partners.

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