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Estate Planning Considerations for Same-Sex Couples in Texas
Although same-sex couples now have full marriage equality in the United States under the Supreme Court’s decision in Obergefell v. Hodges, from a practical perspective, gay and lesbian couples can still face some undesirable challenges when it comes to having their relationships acknowledged and respected in Texas and other parts of the country. This makes it particularly important for same-sex spouses to thoughtfully prepare comprehensive estate plans. A comprehensive estate plan will address much more than the distribution of a person’s property after death, and will provide clear and unambiguous direction for limiting court involvement to the greatest extent possible.
5 Key Components of a Comprehensive Estate Plan for Same-Sex Spouses
Although everyone’s estate planning needs are different, the following are five key components of a typical comprehensive estate plan:
1. Property Distribution
Regardless of how much property you own or how much wealth you have accumulated over the course of your life, distributing your assets will be a central function of your estate plan. Typically, the goals of the property distribution provisions of an estate plan are to:
- Provide for distribution of individual assets to avoid “who gets what” disputes between loved ones;
- Mitigate or avoid estate and gift tax liability;
- Address any charitable aspirations;
- Preserve assets after death, particularly in the case of gifts to minors; and,
- Avoid the need for probate (more on this below).
2. Personal Representative and Trustee
As part of preparing a will, you will designate a personal representative. As part of establishing a trust, you will appoint a trustee. These individuals (who may actually be the same person) will be the ones responsible for administering your estate and winding up your final affairs after your death.
3. Medical and Financial Decision-Making
Estate planning involves certain lifetime planning aspects as well, primarily with regard to medical and financial decision-making. If you become incapacitated due to an injury or illness, using powers of attorney, an advance health care directive and other documents to appoint your same-sex spouse (or someone else of your choosing) as your proxy can help your loved ones avoid uncomfortable decisions and disputes during challenging times.
4. Guardianship of Minor Children
If you have minor children, in addition to providing for their financial needs, it will be important to appoint a guardian as well. In the event that you and your spouse were both to die unexpectedly, your appointed guardian would be able to immediately assume responsibility for your child’s care.
5. Probate Avoidance
If you die without a will, your entire estate will be administered through the probate process. If you use a will to distribute your assets (as opposed to using a trust), your personal representative will need to deal with probate as well. Due to the time and costs involved – as well as the potential for disputes among family members – it is generally advisable to use the estate planning process to keep as much of your estate out of probate as possible.
Schedule a Free Initial Estate Planning Consultation in McKinney, TX
If you would like to speak with an attorney about putting together a comprehensive estate plan, we encourage you to get in touch. To schedule an appointment with one of our estate planning lawyers in McKinney, Texas, please call 214-726-1450 or request a free initial consultation online today.