PLANNING FOR SAME-SEX COUPLES

BULLWINKEL & BROOKS, L.L.C.​

         The Commonwealth of Massachusetts has been at the forefront of the changes in the laws regarding same-sex marriages.  Massachusetts was the first state to pass laws recognizing same-sex marriages.  Under Massachusetts law, the rules and provisions for same-sex married couples are no different than those rules and provisions for “traditional” married couples. Since then, the laws for same-sex couples have been rapidly changing across the country. As of May 2013, 12 states and Washington, D.C. have passed laws that legalize same-sex marriages (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington (state), Maine, Maryland, Delaware, Rhode Island and Minnesota.).

          While this rapidly changing area of law is great, the majority of states  and the federal government still do not recognize same-sex marriages.  As a result, this can create problems for same sex married couples, specifically with respect to inheritances, substitute  


decision making matters and health care matters.As a result, this can create problems for same sex married couples, specifically with respect to inheritances, substitute decision making matters and health care matters. For example, both the Federal and Massachusetts estate tax laws provide for an “unlimited marital deduction” for assets passing to a surviving spouse. For same sex married couples living in Massachusetts, assets passing to a surviving spouse upon the death of a spouse could receive an unlimited state estate tax deduction.  However, since the federal laws do not recognize same-sex marriages, the unlimited marital deduction may not apply to the Federal estate tax.

          As a result of these conflicting laws, it is important for same sex couples, whether married or not, to complete some level of basic estate planning.  For same-sex couples who are in a long term committed relationship but not legally married, the existing laws are not favorable.  Without a carefully created estate plan, those persons in a long term committed relationship do not have any rights to receive any assets from a deceased loved one. One way to make sure your wishes are followed is to create an estate plan.  Estate planning can include simple wills, powers of attorney and health care related documents that allow individuals of your choice to make medical decisions for you if you are unable to do so.  You can also decide who to leave your assets to, including your partner, in the event that you pass away. You will also ensure that your partner is the person making any health care decisions for you, rather than the court or some other unwanted party.

          If you would like to discuss your legal matter with one of our attorneys please contact this office and arrange for a free initial consultation. Our experienced attorneys can assist you with your legal needs.