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Estate planning considerations for same-sex couples

Same-sex couples or people who have been in same-sex marriages in Illinois may have certain concerns in estate planning. While same-sex marriage has been legal nationwide since 2015, the variations in state law prior to that point created some uncertainties. People who married in a state in which gay marriage was legal prior to 2015 and moved to a state where it was not may not have bothered with a divorce and may not realize they are married. Furthermore, some states converted domestic partnerships to marriages.

Same-sex couples may want additional legal protection. They might be more likely to be estranged from their families. They may also face more challenges when they attempt to make decisions for an incapacitated spouse. Documents such as powers of attorney, a health care proxy and a living will may help with this. People may also want to consider a trust. Since a trust does not go through probate, this may make it more difficult to challenge.

Children are another consideration. It is likely in a same-sex relationship that children may be biologically related to only one parent. Adoption procedures may be needed. In general, same-sex couples may want to work with a professional because do-it-yourself plans often do not apply to their situation.

There are a number of other issues regarding estate planning that are not specific to same-sex couples that they may want to consider. For example, parents might want to think about using a will to appoint a guardian for any minor children and setting up a trust to protect assets for those children. If the estate is a particularly large one, the couple might want to take steps to reduce estate taxes. An attorney may be able to discuss various strategies that can apply to a client's particular set of circumstances.

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