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Same-sex couples especially should take the long view in estate planning

Everyone is watching the ongoing process of a reconsideration of the definition of marriage being carried out in both the court of public opinion and actual courts. As this continues to develop, it might not be a bad idea to take a bit of time to, at least temporarily, put aside some of the more emotional rhetoric in an attempt to anticipate the many practical implications of the discussion. No matter the outcome of any single ruling, it appears that the make-up of the family is in for a change. In many places and areas of public life, changes have already occurred.

Not acknowledging same sex couples, would be a show of cognitive dissonance perhaps akin to a person who refuses to plan for death because the subject makes them uncomfortable. As Jay Adkisson pointed out in Forbes, "This Great Nation is apparently about to go through a wave of marriages at numbers unseen since the boys (and even a few girls) came home from World War II. That's okay, as the advent of laser printers and computerization means that the city and court clerks can churn out as many marriage licenses as needed to keep the lines relatively short, and the amazingly large wedding industry can use a booster shot after the last recession sent many new couples to the Elvis-attended drive-through chapels in Vegas."

Although it appears that the court and city clerks are well prepared, (at least those not trying to opt out from the performance of their duties based upon religious reasons), the more pressing question is: Are all the individuals involved prepared? It doesn't take much imagination to picture that there could be a wide range of impacts. These are likely to increase in complexity as time goes on and these same issues of marriages and domestic partnerships will increasingly turn into issues of Wills, trusts, estates, benefactors, joint ownership of property and heirs. These are complicated areas already, and turn out some incredibly tangled affairs as things stand now. Without level-headed planning, the waters will only get murkier.

The initial excitement of some favorable court decision, for example, might incite any number of couples, who were previously not able to marry, to rush out to the alter or courthouse to celebrate publicly what was previously forbidden. But no matter how strongly one may feel about the issue itself, the fact remains that marriage is an institution with no lack of weighty implications. One fairly common trap couples fall into is rushing to a state where they do not reside to have a legal wedding ceremony without thinking through all the possible future eventualities.

Let's say a couple living in Florida decides to marry in New York. Their home state will not recognize the marriage. Of course, the couple can ignore their home state and consider themselves married. But what if, at some time in the future, they decide to part ways? Nobody wants to think about it at the time of a wedding, but this is life and it happens. In order to get a divorce, one of them would have to move to New York for six months, unless more laws fall or change. While some people in that exact position choose to simply go on as if the whole thing had never happened, they are still legally married in New York. It's not difficult to see how this could lead to problems in the future.

According to many legal professionals, same-sex couples have even more reason to be cautious about tying the knot and to be particular about the details surrounding that. Because of the current state of affairs, some have likened such couples with hopes of marriage to late-in-life marriages. This is because each partner is likely to come to the table with more in terms of assets, equity, debts, and liabilities.

Of course, prenuptial agreements are often recommended for people planning to wed in such circumstances. And, while it's another subject some tend to shy away from, it might give them pause to learn the complications thrown on the matter by the fact that states cannot be forced to recognize same-sex marriages from other states. In the event that even one of the partners moves to a state where their marriage is not recognized, the legal rights of both can be put in limbo.

But what is perhaps of more universal concern is the drafting of Wills. Of course, one is free to make anybody the beneficiary of a Will, regardless of how the state one lives in categorizes your relationship with the beneficiary. Still, there are pitfalls. For example, it might seem perfectly natural for same-sex couples to include their spouses in their Wills. Unfortunately, if that couple resides in a state where their union is not recognized, actual use of the word "spouse" in the Will could lead to headaches and confusion down the road. If the couple decides that they no longer want to be together, and deem the difficulty of divorce too daunting, a probate court might later say the marriage is still valid. The portion of the estate allotted to the "spouse" in the Will could still go to that person, even though they may not have been together for years or decades.

In addition, the human side of things should be carefully considered. Even after drafting a Will that appears to be airtight, there are still widely differing opinions on same sex marriage, sometimes even within the families of such couples. And when one leaves an estate, or a large portion of it, to somebody considered a non-family member, it leaves open the risk of challenges to the Will. Those who might have expected to be beneficiaries, or who feel slighted by the Will, could suggest the fact that a non-family member was named as evidence that the testator was not of sound mind. Contesting Wills is a lengthy and expense route. It can take years. To move forward, some people just agree on a compromise settlement, whether it is in their own best interests or not, just to get it over with.

Phantom marriages, contested Wills, and a make-do state-by-state legal patchwork… these are thorny issues. So much so that it could make the gleeful rush to the church appear a bit more like a morning jog through a minefield. These things don't have to be made into a completely discouraging picture, however. This has all the appearance of something that many of us will have to grapple with for a long time time to come. Luckily, we have an adaptable system designed with the inevitability of social change in mind. Perhaps more luckily, there are legal professionals who have seen all kinds of unexpected things come down the pipeline, however, a good lawyer needs more than a crystal ball to predict ever single eventuality when all hits the fan. Awareness of these pitfalls is the first step in avoiding them. The second is to seek the help of a firm with the experience needed to make sure your carefully-made plans are not upset on technicalities.

We suggest that under all circumstances, you should retain the expertise of a genealogist and attach a comprehensive family tree to your Will regardless if certain family members are included or not. This will save time and expense if something goes horribly bad.

Categories: Estate Planning
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