Gay rights flag

When same-sex marriage was legalized nationwide in 2015, many legal issues that same-sex couples faced were ratified. But in other areas, like estate planning, some couples – especially unmarried same-sex couples – could continue to face issues when trying to get their estates in order.

Elena Lidrbauch, certified elder law attorney at Hickman & Lowder Co. in Cleveland, and Joy Savren, attorney at Joy Savren Legal in Cleveland, said there are many ways estate planning could differ for same-sex couples, like how it relates to wills or trusts, or health care power of attorney.

But for both attorneys, the biggest issue same-sex couples could face is who would get custody of a child after a partner dies. 

Savren said same-sex parents should be asking themselves questions when estate planning, like if they had children while married or before, if the children are from previous marriages or if they have dealt with custody issues.

“There is no automatic,” Savren said. “If you’re a man and a woman and you’re married with children, those children are part of the marriage. What an estate planning attorney should be doing while working with LGBT couples is that they should be asking those questions about custody. It could be problematic to the client. 

“Did they do a step-parent adoption? Did they file a parentage action in court? There are different circumstances – but they should be told by estate planning attorneys about what they have done about their custody situation and be referred if (that estate attorney) doesn’t practice that.”

Lidrbauch said it comes down to whomever is the custodial parent. She said before same-sex marriage was legalized, you couldn’t have same-sex parents listed as parents on a birth certificate. It had to be one mother and one father. 

“I think you can now name same-sex parents, as long as they are both listed as the parent or received some sort of recognition that they are the legal parent,” she said. “For example, let’s say there is a couple where one parent is labeled as the birth mother and the other mother isn’t labeled as anything and the ‘birth mother’ passes away. The other mother would have to go through legal proceedings to get custody. To avoid that, you can nominate who you’d like the guardian to be when you pass.”

Other issues same-sex couples could run into include money issues, especially if one is earning more than the other and would have trouble functioning if the partner died. Especially if the same-sex couple is unmarried, Savren said if they want to protect the partner that earns less, the estate owner should name them on non-probate assets.

Lidrbauch said that her biggest piece of advice for same-sex couples while planning their estate boils down to making sure everyone is on the same page – including their estate planning attorney. “(My biggest piece of advice is) to really talk things through and make sure that all of their wishes they want to be handled by the other person is clearly spelled out in a document,” she said. “By indicating who exactly you want to be in charge, that could go a long way in family situations where (the partner) isn’t accepted. The more they are documented, the more likely their wishes will be followed.”

Savren said, “I think that for any couple, they need to have a clear understanding what their assets and liabilities are. Basically, what is their goal in this process? And this applies to anyone who comes to see an estate planner. The emphasis needs to be placed on the second word – as there are lots of different ways to plan. It’s all about what the parties want.”

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