Written from a presentation by Stephanie Faris, Attorney by Kirstin Hawthorne and Katie Stokes
At Munson Law Firm, we’re committed to helping navigate the changes ahead, especially as they relate to the LGBTQIA2S+ community. While the future is uncertain, the impacts on same-sex couples could be substantial. We’ve listened to feedback from our clients and friends, and had dynamic discussions around topics like second-parent adoptions and same-sex marriages. Our upcoming session on No Fault Divorce is scheduled for January 9 (register here today!). Here's a brief recap of our recent discussion on spousal rights and estate planning.
Understanding Spousal Rights and Estate Planning for Same-Sex Couples
Currently, spousal rights are equal for same-sex and opposite-sex couples. Since June 26, 2015, same-sex marriage has been legally recognized across the U.S., ensuring same-sex spouses enjoy the same rights as opposite-sex spouses. There is no legal distinction between them.
Estate Planning for Same-Sex Couples
In 2024, there is little difference between the estate planning needs of same-sex and opposite-sex couples. Married same-sex couples are legally recognized, with no significant challenges to this status. However, unmarried couples—regardless of gender—face similar challenges when it comes to protecting their rights and partners. Unmarried partners have to go through more hoops to access or solidify certain rights such as parental rights, ownership rights, and inheritance rights. If marriage isn't the right choice, unmarried couples must plan more proactively for the future.
One key difference remains in parenting. Same-sex couples may need to take extra legal steps to ensure both partners are recognized as parents, particularly when both aren't biological parents. Virginia allows second-parent adoption where a non-biological parent may adopt. North Carolina only recognizes stepparent adoption and requires that non-biological parents must be married to their partners in order to adopt. These extra steps can make securing parental rights more complicated for same-sex couples.
Concerns for 2025 and Beyond
Looking ahead, the LGBTQ+ community is concerned about potential changes in government and legal recognition, particularly around same-sex marriage and rights. While same-sex marriage is still the law, there is anxiety about future changes that could affect recognition and spousal rights. Concerns include:
The potential for a spouse not being legally recognized.
Challenges to wills and inheritance rights.
Custody battles involving non-biological parents.
These concerns highlight the importance of proactive estate planning to ensure partners and children are protected.
Potential Legal Consequences
If same-sex marriage were to be retracted, several legal issues could arise, including:
Surviving Partner Inheritance: Inheritance rights may be contested by family members, especially if there is no legally recognized relationship.
Medical Decisions: Without legal recognition, one partner may not be able to make medical decisions on behalf of the other.
Custody Issues: Non-biological parents may face challenges in custody battles if something happens to the biological parent.
Proactive Solutions
To protect your rights, here are some proactive steps in estate planning:
Draft a New Estate Plan: If you haven’t created one, it’s important to get started to protect your beneficiaries.
Revise Existing Plans: Update your estate plan to reflect current realities and potential future changes.
Document Your Decisions: Keep a paper trail to clarify your intentions and protect against challenges.
Carry Important Documents: Always have essential documents (like powers of attorney and healthcare directives) accessible.
Planning for the Future
Estate planning attorneys are adapting to these uncertainties by:
Drafting Specific Gifting Language: Clear language in documents ensures that your wishes are honored.
Removing Relational Language: Cautious use of terms like "spouse" to prevent legal challenges.
Incorporating Trust Protectors: A trust protector can oversee and ensure your trust is administered as intended.
Conclusion
As the landscape of estate planning for same-sex couples evolves, it’s crucial to remain proactive. While current laws support same-sex marriage, we face uncertainty about the future. By taking steps now, you can ensure that your wishes are respected, and your loved ones are protected, no matter what changes may come.
We’re here to help you navigate these important legal matters. For questions or to schedule a consultation, reach out to the Munson Law Firm at admin@munsonlawfirmnc.com.
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