Same-sex couples may have more estate planning challenges

In Delaware and elsewhere, virtually every adult confronts certain issues and challenges when they think about their legal estate and the possibility of becoming incapacitated at some point in their lives. Many same-sex couples experience additional challenges as they consider estate planning issues. Perhaps one of the primary, and potentially most important challenges is the legal status of their relationships.

When same-sex marriages were recognized legally, many states automatically converted civil unions and domestic partnerships to marriages. Many couples who were together before the change may not realize that they are now considered legally married, which often impacts how estate planning is done. Before embarking on any estate planning, it may be necessary to verify this point.

For those same-sex couples who have children, extra steps may be required in order to properly provide for them. For example, a non-biological parent may need to go through adoption proceedings first. Medical care and end-of-life decisions also need attention. Powers of attorney, do not resuscitate orders and living wills can help ensure that an individual’s wishes are carried out if needed. It may be determined that the best way to provide for a spouse and any children is through a trust.

Accordingly, same-sex couples could face additional challenges when engaged in estate planning. Delaware couples may consider using do-it-yourself planning materials, but in doing so, it would be easy to miss something important. The extra time, expense and effort of enlisting the guidance and assistance of an attorney could be well worth it if it saves a surviving spouse from encountering unnecessary complications in settling the estate during an already emotional and difficult time.

Source:, “Estate Planning 101 for Same-Sex Couples“, Tina Orem, June 7, 2017



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