Life Partners After Death?: Important Estate Planning Issues for Same Sex Couples


For gay and lesbian couples, life is often full of issues which are somewhat unique when compared to what the mainstream experiences.  Aside from the obvious issues of dealing with a lack of understanding from the general populace, there are some more prosaic but equally important ways in which they are different.  For instance, every year at tax time, registered domestic partners must file an extra set of tax returns because the Federal Government does not recognize their right to marry.  The denial of the right to marry by both the Federal Government and the majority of states carries with it significant consequences for same sex couples when it comes to estate planning.

For married couples, there is a presumption that property owned between spouses automatically transfers to the survivor upon the passing of one spouse.  For same sex couples who have not gotten married or established a registered domestic partnership, there is no presumption that the survivor receives any benefits from the decedent partner.  Under the laws of most states, the assets of the decedent partner will pass to his or her family members, leaving the surviving partner out in the cold.  To remedy this issue, couples should consider drafting a will or a trust to clearly indicate their wishes with regard to their partner.

Another important document to consider is an advanced health care directive.  This document allows partners to appoint each other to make medical decisions for one another in an incapacity situation.  Without such a document, there is no presumption that the healthy partner has the authority to make such decisions without a court order, especially if there are blood relatives advocating for a conflicting course of action.

Children of same sex couples often require some different planning as well.  In the case of unmarried couples, sometimes the children are not legally adopted by both partners.  This can present all sorts of issues in the event the legal parent predeceases the other partner.  It is a good idea to plan for a successor guardian to minimize the possibility of a court proceeding in the wake of the legal parent’s passing.

Gifts between partners can also create some problems in an estate planning context.  Married people enjoy a tax benefit called an “unlimited spousal deduction.”  What this basically means is that spouses can transfer an unlimited amount of assets between each other without there being any tax consequences.  However, for unmarried same-sex couples, the transfer of over $13,000 per year in gifts, services or support between partners can result in gift tax consequences which were otherwise unintended.

As you can see, there are a number of estate planning issues which are unique to gay and lesbian couples.  We hope that in time these issues will diminish due to an increased acceptance and understanding in our society.  In the meantime, it is important to address these issues to prevent any unintended consequences and to make sure that each partner’s wishes are properly carried out.

Brian Y. Chou is an estate planning attorney based in Southern California at the Law Firm of Barth Calderon, LLP.

About brianychou

Brian Y. Chou is an Associate Attorney at the firm of Barth Calderon LLP and his practice focuses on asset protection, estate planning, and business succession planning. Mr. Chou assists clients in all stages of life, from the young professional couple that is concerned about estate planning for their minor children, to the wealthy real estate investor who wants to insulate himself and his properties from lawsuits, to the successful business owner who is agonizing about how to transition his company to the next generation. Mr. Chou understands that coming to grips with an impending lawsuit and confronting one’s mortality are typically not high on most clients’ list of things to do and his goal is to make the planning as accessible, digestible and (dare we say it?) enjoyable as possible. Mr. Chou seeks to build lifelong relationships with his clients to ensure that as their personal lives and legal situations evolve, their planning continues to accurately reflect their wishes. In addition to working with clients to protect and transition their assets, Mr. Chou actively seeks to be a resource to his clients in all aspects of their lives. He encourages his clients to contact him with all manner of needs, whether it be a plumber to fix a clogged drain, or a qualified accountant to contest an aggressive property tax reassessment or anything in between. An avid public speaker, Mr. Chou has presented to numerous groups all over Southern California, including University of California Irvine, Cal State Long Beach, the Planned Giving Roundtable of Orange County, and the California Society of Tax Consultants. He is also especially proud of passing the California State Bar Certified Specialists Exam for Estate Planning, Trust & Probate Law. Mr. Chou has also obtained his Series 7 & Series 63 Securities licenses and is also a licensed life & health insurance agent. For Mr. Chou, establishing a connection with the community is paramount. To this end, he is active in a number of organizations, including the Estate Planning & Trust Council of Long Beach, Provisors, Business Networking International, and Comprehensive Child Development, a non-profit providing early childhood educational programs for low income families in Long Beach. Brian Y. Chou is a native of New Jersey and the son of Chinese immigrants. After high school, he moved out to the west coast to attend the University of California, Los Angeles, where he received a degree in economics. Upon the completion of his degree, Brian earned a JD/MBA degree from Pepperdine University. During his time at Pepperdine, he participated in a number of activities. Notably, Brian was a literary citations editor for the Dispute Resolution Law Journal, the President of the Asian Pacific American Law Student Association, the Vice Magister of Phi Delta Phi Honors Fraternity, and a member of the Moot Court Board. He also worked in the Career Development Office at the Pepperdine School of Law and remains involved with the community there. Before establishing his estate planning practice, Brian worked for a law firm in the Inland Empire specializing in insurance defense and construction defect litigation. Prior to that, he clerked at law firms in West Los Angeles where he participated in the practice of Workers Compensation litigation and general corporate law. He is committed to using his broad range of experiences to build relationships and effectively represent his clients in a way that is thoughtful and pleasant for all parties involved. In addition to his professional achievements, Brian can speak Mandarin Chinese and can understand Cantonese. His interests include: surfing, basketball, tennis, jogging, drawing and cooking.
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