Estate Planning Facts for NY Same Sex Couples
By: Barry E. Haimo, Esq.
March 10th, 2022
Since the landmark case of Obergefell v. Hodges in 2015, all 50 states have legalized same sex marriage. Earlier, in 2013, the Defense of Marriage Act (DOMA) was deemed unconstitutional. This meant same sex married couples in New York, where marriage had already been legalized, were now afforded full marital benefits under state and federal estate planning laws. In other words, the definition of “spouse” includes same sex partners, whereas before it did not.
But even with these legislative advancements, its incredibly important for same sex couples to understand their rights in regard to estate planning. This is especially true for unmarried same sex couples in NY, who might face unique circumstances when planning for the future.
Establishing the right estate plan with an attorney who specializes in wills, trusts, probate, and estate planning can make all the difference in protecting your partner, your choices, and your shared assets.
Why Should Same Sex NY Couples Consider Estate Planning?
While same sex marriage is legal in NY and same sex spouses are afforded all the legal benefits and protections as other marriages, the state does not recognize common law marriage.
This means that a same sex couple in a civil union or domestic partnership who move to NY might expect to have the same rights that they had in their previous state. But they could be mistaken.
Unmarried and Married Same Sex Couples
Differences in regional laws could leave some unmarried couples at a disadvantage when one partner dies without a will. “Intestacy” is the default state law in NY, and it says when a married person dies with no estate plan, their surviving spouse is guaranteed a good chunk of their assets.
But for an unmarried couple without a will, the surviving partner isn’t ensured anything. Assets are usually given to the family of the deceased instead. While the recent changes in the law are favorable to include same sex spouses, the law does not displace the need to engage in estate planning.
Fortunately, the right estate planning document can help ensure your wishes are recognized and your estate is protected. And even married same sex couples in NY benefit from estate planning, which helps minimize probate and taxes and can offer your beneficiaries protection from creditors.
Which Estate Planning Document is Right for You?
As outlined above, if you or your partner dies without a will, intestacy laws will divide your assets and distribute them to blood relatives. A will is the most basic estate planning document, and expresses your wishes in writing to ensure your assets are given to your partner. It can also help designate guardians for minor children, and assets for children from previous relationships.
However, wills provide the least amount of protection since they are a matter of public record, can be contested easily, and require your family to be notified of your death and assets. They are also subject to probate, which can draw out the amount of time it takes for your same sex partner to receive their portion of your estate.
Powers of Attorney
In the event that you become incapacitated, your same sex partner cannot make financial decisions on your behalf without designating them under a durable power of attorney.
This is another reason why estate planning with a trusted attorney is so important for same sex couples in NY. An attorney can help you ensure your partner is (privately, if you wish) deemed a financial or health agent on your behalf through a power of attorney, a living will, or a healthcare directive. This enables your partner to legally handle your finances, healthcare, or end of life wishes on your behalf if you are unable to do so.
Living trusts are an excellent estate planning choice for same sex couples in NY for a number of reasons. These tools:
- Offer a good deal of protection for your estate – more so than a will
- They can eliminate both living and death probate
- They minimize – and in some cases, completely avoid – taxes
- They are private, and unlike wills, will not notify blood relatives unless specified
- Your partner can make decisions on your behalf if you become incapacitated/diabled
- You can designate children from previous relationships as beneficiaries, in addition to your current same sex partner
Haimo Law can help protect your partnership and offer you peace of mind knowing you’re prepared and in control. You may feel apprehensive about estate planning as a same sex couple in NY, but it doesn’t have to be that way. We can help you craft an estate plan to meet your needs and guide you through our unique and proprietary process. Call us to get started today at 631-889-2757.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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