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April 28. 2013 3:18PM

Know the Law: Same-sex couples still face legal uncertainty


 

QUESTION: My same-sex spouse and I were legally married in New Hampshire earlier this year. Given the recent challenges to the bans on same-sex marriages, is there anything we, as a same-sex couple should still be concerned about when developing our estate plans?

ANSWER: Yes. Even if, as many observers believe, the U.S. Supreme Court strikes down parts of Defense of Marriage Act ("DOMA"), married same-sex couples will still face legal uncertainty that opposite-sex couples do not.

For example, Section 2 of DOMA, which was not part of the recent challenge, allows states to refuse to recognize valid civil marriages of same-sex couples. State law rights and privileges affect adoption, property, taxes, and control of a spouse's remains, among others. Even if a same-sex couple is married in New Hampshire, most states do not recognize such equal rights. For instance, a married same-sex couple cannot get divorced in Texas.

It is important that you have updated financial powers of attorney and New Hampshire Advance Directives, clearly nominating your spouse (or another) as the primary person to make decisions in the event of incapacity. Your documents should include an expansive definition of "spouse," "marriage," "children" and "descendant" and avoid relying on state law definitions to avoid ambiguity.

In addition, you need wills, and depending on the assets and complexity of your estates, revocable trusts. The will should nominate the spouse as the executor and primary guardian over minor children. The will should also provide burial instructions and for control over remains. If there is not a separate trust, the will should contain all the dispositive provisions of your estate plan.

You should confirm that the designated beneficiary of life insurance policies and retirement accounts is correct. If you are not using an revocable trust, it may be useful to title assets in joint tenancy to avoid probate and ensure the property ends up in the hands of the person or persons intended. On a more advanced level, plans can be developed to minimize potential taxes and take advantage of existing laws that might actually favor same-sex couples.

No matter what the outcome at the court, the mosaic of state laws affecting marriage will continue to evolve. An estate plan cannot fix all of the federal and state law discrimination now facing same-sex couples. But you and your estate planning attorney should be prepared to develop a plan in which your basic wishes are respected and which provides flexibility, so you can take full advantage of all of the current and future opportunities available under both state and federal law.

Alexandra Breed can be reached at Alexandra.breed@mclane.com.

Know the Law is a bi-weekly column sponsored by The McLane Law Firm. We invite your questions of business law. Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.



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