Same-sex marriage is arguably one of the most prominent topics in the nation today. In light of the U.S. Supreme Court’s decision in U.S. v. Windsor, which invalidated significant portions of the Defense of Marriage Act, along with a series of federal court decisions and legislative actions legalizing gay marriage in states (including Minnesota) across the country, it’s no surprise that many same-sex couples have questions about how these evolving laws impact their estate plans.
Marriage Equality in Minnesota
On August 1, 2013, Minnesota became the twelfth state in the country to legalize gay marriage. Previously, state law defined marriage as “a civil contract between a man and a woman.” The new law defines marriage in Minnesota as “a civil contract between two persons.”
This new law came just months after the U.S. Supreme Court’s decision in U.S. v. Windsor, which struck down key provisions of the Defense of Marriage Act – commonly abbreviated DOMA. The High Court ruled that DOMA’s definition of marriage as “between one man and one woman” violated the Equal Protection and Due Process guarantees of the U.S. Constitution. Although the Court’s decision does not invalidate state marriage laws, it means that same-sex spouses are now entitled to the same federal benefits as heterosexual spouses, including social security benefits and the federal unlimited gift and estate tax marital deduction for transfers made between spouses.
Because same-sex marriage is now legal in Minnesota, legally-married gay couples are also entitled to all the same state-based rights as married heterosexual couples, including the right to file joint income tax returns and inherit each other’s property in the absence of a last will and testament. This does not mean, however, that married gay couples should bypass a comprehensive estate plan.
To protect themselves, same-sex couples should work with an experienced estate planning attorney to create a comprehensive estate plan. Critical documents include:
Last Will and Testament
Without a valid will in place, assets will be distributed according to state inheritance laws. And while a same-sex spouse will be first in line to inherit, assets may not necessarily be distributed in the manner the deceased spouse would have wanted. For example, same-sex spouses who have children biologically related to just one spouse may want to create a will leaving property to a non-biological child.
Financial Power of Attorney
A financial power of attorney allows an individual to name a trusted, reliable person to manage his or her financial affairs – including paying bills and handling banking – in the event he or she becomes incapacitated. Without this document in place, a spouse may have to obtain a guardianship, which can be a lengthy, costly process.
Advance Healthcare Directive
Similar to a financial power of attorney, a health care power of attorney permits a trusted person – usually a spouse – to make health care decisions on the maker’s behalf.
Minnesota Estate Planning and Probate Attorneys
The attorneys at Jeffrey P. Scott & Associates, LLC know that families come in all shapes and sizes. We help our clients protect the things that matter most. Call us today our office to schedule your estate planning consultation.
This website has been prepared by Jeffrey P. Scott & Associates, LLC for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
