Three Retirement Issues Facing LGBT Couples in the United States

Dec 04, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, GLBT, Retirement Planning

The quest for equality for LGBT couples has made significant strides over the last few decades, but there still exist some striking differences between traditional couples and non-traditional couples. One such difference is in the area of retirement and the allocation of employment benefits and social security, mostly because of the definition of “spouse” in the federal Defense of Marriage Act (DOMA). But there are ways LGBT couples can take steps to improve retirement.

To start with, you should take a look at your 401(k) beneficiary designations if you have been working for the same employer since before 2010. Why? The Pension Protection Act of 2006 made it so a gay employee’s partner could roll inherited retirement benefits straight into an individual retirement account or annuity, but in order to do so that partner must be a designated beneficiary.

Next, you should learn whether your company is one of the 73% of corporations that offers a survivor option for the domestic partners of its workers. Why is this important? It’s important because DOMA doesn’t allow spousal and survivor benefits to be extended to LGBT couples. If your employer is not part of that 73% then consider buying a life insurance policy and designating your partner as the beneficiary.

Finally, federal law allows heterosexual couples to bequeath unlimited funds to surviving spouses, but imposes a 55% estate tax on bequeathed sums over $5-million between gay couples. To learn how to work with this, or to find out more about other alternatives, contact your estate planning attorney today.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Estate Planning Choices For Girlfriends and Boyfriends – 3 Questions

May 16, 2012  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, GLBT

Question 1: Will my girlfriend/boyfriend inherit my property if I die?

No. Unless you own property jointly, have named your partner as a beneficiary in insurance policy or transfer on death account, or have created a will that leaves property to your partner after you die, your partner will not inherit your possessions after your death. Though the law gives spouses the right to inherit automatically should the other die, it makes no such provisions for cohabiting couples. You’ll have to create a Will or devise another inheritance method if you want to ensure your partner receives property after your death.

Question 2: Will my girlfriend/boyfriend be able to tell my doctor what I want if I get sick?

No. While a spouse usually has legal authority to make medical decisions on behalf of an incapacitated spouse, cohabitating partners do not automatically have this right. If your partner is incapacitated it will be up to a judge to determine who has the right to make medical decisions. However, you can give your partner this right if you create a medical power of attorney or advance directive.

Question 3: Will my girlfriend/boyfriend have the right to care for my children if I am incapacitated?

No. Again, in this situation it will be up to a court to determine who should become the legal guardian of your children. If there is no available parent, the court will likely choose a person related to your children regardless of the relationship between your girlfriend or boyfriend and your children. You can, however, select your partner as your choice of guardian in the event you are incapacitated.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Fact Sheet: Estate Planning for Same Sex Couples

Apr 14, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: GLBT

The definition of “marriage” is a moving target so planning for same sex couples is a dynamic area of practice for estate planning attorneys.  The last 10 years have shown many changes and great advancement for lesbian and gay couples.

  • The state of Washington and 4 other states have instituted marriage equivalents such as Civil Union or Domestic Partnership (California, Oregon, Nevada, and New Jersey.)
  • 5 states and the District of Columbia permit same-sex marriage (Massachusetts, Vermont, Connecticut, New Hampshire, and Iowa.)
  • In addition, 3 states others provide same-sex couples with some statewide spousal rights (Maine, Wisconsin, and Colorado.)

 

  • This means that 1 out of every 3 Americans lives in a jurisdiction recognizing same sex marriage or its legal equivalent.
    • However, the “Defense of Marriage Act” (“DOMA”) which specifically permits states to disregard same-sex marriages performed in other jurisdictions, specified that for purposes of federal law, marriage was between one man and one woman is still law.

 

  • This means that same-sex marriages do not have equal rights with heterosexual couples.

 

  • For example, same-sex married couples are not entitled to receive the federal unlimited marital deduction.  In a heterosexual marriage, one spouse can give, during life or at death, an unlimited amount of assets to the other spouse without incurring any federal estate tax.

 

  • All couples need basic estate planning to ensure that their wishes are carried out.  Basic estate planning includes counseling, goal setting, plan design, document drafting, document drafting, plan execution, and funding.

 

  • Basic estate planning documents include the revocable living trust, pour over will, powers of attorney for health care, powers of attorney for finances, powers of attorney for child care, first responder authorization, living will, HIPAA release, and organ donation form.

If you have questions about estate planning for same sex couples, call our office for an appointment to discuss your personal situation.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Should you become a State Registered Domestic Partner?

Jan 13, 2011  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, GLBT

The Washington State Legislature has recognized that families are no longer just mom, dad, and two or three kids. Today’s families come in all different configurations. The legislature finds:

that the public interest would be served by extending rights and benefits to different sex couples in which either or both of the partners is at least sixty-two years of age. The rights granted to state registered domestic partners in chapter 156, Laws of 2007 will further Washington’s interest in promoting family relationships and protecting family members during life crises.

This means that same sex couples or different sex couples who choose not to marry to avoid the loss of pension or social security benefits are to be treated the same as married spouses. The non-traditional couples would have the right to make decisions regarding medical treatment, rights to benefits, and all other aspects, as would a married couple. The intent is to provide equal treatment.

Non-traditional couples have the same rights as traditional couples without the extra-added expense of having the appropriate documents drafted to give them the same rights that married couples enjoy such as, such as those associated with hospital visitation, health care decision-making, organ donation decisions, and other issues related to illness, incapacity, and death.

You should consult with an estate-planning attorney who has experience in handling the issues that non-traditional couples face is imperative in this situation. He or she would be able to provide more information about how this change in the law will affect couples concerning their rights in other areas involving health insurance and pension benefits. This statute only applies to couple who register as domestic partners under the requirements of the statutes. It is therefore necessary to make sure that the appropriate procedures are followed.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Estate Planning Crucial for Non-Traditional Families

Jan 03, 2010  /  By: Geoffrey H. Garrett, Estate Planning Attorney  /  Category: Estate Planning, GLBT

Estate planning is important for all families, but it is even more important for non-traditional families. It does not matter whether it is a same sex couple or heterosexual couples that choose to live together without marriage. It can be single parent families. Failure to plan for the future can result in heartbreak, tragedy and loss of financial resources for the people for whom they are intended.

The law is rarely quick to adjust to the social changes in society. The law presumes that a family is a mother, father and two or three children. Considering that the validity of gay marriage has not been resolved, you cannot depend on the laws of intestate succession to protect the people about whom you care. Some of the protections for your family you need to consider are as follows.

  • Living will or Health Care Directive – to instruct medical professionals regarding your medical treatment if you are unable to do so yourself, or to appoint the person you want to make the decision for you.
  • Executing a will that determines how and to whom your property is to be distributed.
  • A Trust agreement – can be revocable or irrevocable, may provide better protection for gay and Lesbian couples than a will alone.
  • Durable power of attorney
  • Appointment of Guardian for minor children – can be especially important for same sex couples if you live in a jurisdiction that does not recognize same sex couples or family members object to your relationship. Should also be a consideration for single parent families, especially if the absent parent has not been a part of the child’s life.
  • Contract to make a will – a will can be changed at any time. A contract to make a will binds the parties to the terms of the contract and is harder to change.

To determine which of these or combination of these documents of is best for your situation requires competent legal counsel. Consult with an estates and trusts attorney experienced in this area.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.