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Same-sex couples and their rights in the estate planning process

While many couples rely on estate planning as a way to ensure that one spouse's assets will end up in the other's possession upon their death, same-sex couples are unfortunately not afforded those same guarantees. Despite marriage equality laws that have been implemented in recent years, the transfer of one spouse's estate to their same-sex partner requires the advance signing of directives to ensure that it proceeds smoothly.

For starters, while same-sex marriage was ruled legal by the U.S. Supreme Court in 2015, discrepancies between federal and state laws complicated how relationships ultimately got classified.

In some cases, a marriage that occurred between same-sex partners was legal in one state, yet when the couple moved to another, it was not. In some cases, couples who parted ways once they moved to the new state failed to file for a dissolution of their marriage in the previous one.

Under rules of succession, a deceased spouse's assets get passed on to their living spouse. Unless a formal divorce request is filed in the previous state, it's possible that an individual's belongings could be passed on to their ex.

If you want to ensure that your partner doesn't have difficulty in converting assets to his or her control once you have passed away, then you should also look to draft a will. In doing so, you should clearly spell out your wishes as it relates to what you would like to happen with your assets if you predecease your partner.

You should also look to have a power of attorney drafted to establish who you want to handle your financial matters on your behalf in case you become incapacitated. A health care proxy can be helpful in paving the way for your partner to have access to your medical information without much of a fuss as well.

Also, because same-sex couples tend to become estranged from their families, and particularly their kids, many attorneys recommend creating trusts. This can protect a partner's right to the couple's shared assets. In this case, even if a family member of the deceased partner contests the will, there's not much he or she can do with a trust given that a trust is not subject to the probate process.

A Queens, New York, estate planning attorney can prepare these legal documents for you, ensuring that your final wishes are upheld.

Source: USA Today, "Estate planning is more complicated for same-sex couples," Tina Orem, accessed July 13, 2017

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