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DOMA and its Effect on Estate Planning For Same-Sex Married Couples

In the very exciting case, U.S. v. Windsor (699 F.3d 169 (2013)), the Supreme Court repealed a portion of the Defense of Marriage Act (DOMA). Now, when a same-sex couple gets married in a state that recognizes same-sex marriage, the Federal government must recognize the couple as married. Those of you who live in Massachusetts are in luck! Unless you have been living under a rock, you are well aware that Massachusetts has recognized same-sex marriage since 2004.

In regards to estate planning, the Supreme Court has now made it very easy for estate planning attorneys in Massachusetts. Estate plan documents for same-sex spouses can now be virtually identical to those of heterosexual spouses. In addition to basic estate plan documents, it is important for same-sex spouses with $1,000,000 or more in combined assets and life insurance to do estate tax planning. This will minimize potential death taxes upon the death of the first spouse. Furthermore, the surviving spouse in a same sex marriage is now afforded the same tax saving opportunities as a heterosexual spouse by both the Federal Government and the State of Massachusetts.

Although these new found civil rights are exciting, one must remember that the gay rights movement still has a long way to go. Due to some cases of ongoing discrimination, it is vitally important for same-sex spouses to have estate planning documents in place. For example, if a same-sex married couple is traveling to a state that does not recognize same-sex marriage, we advise that they bring copies of what we call the “Competence Documents” so they will have legal authority to act for each other in both financial and medical matters. First is the Durable Power of Attorney (DPOA), in which each spouse appoints the other in their respective document to have authority in financial matters. Second is the Health Care Proxy (HCP), where each appoints the other to be able to make medical decisions for them if the treating physician determines the spouse cannot make medical decisions for themselves. Third, and perhaps most importantly, is the HIPAA Authorization and Release document in which each appoints the other to be able sign medical release forms to access medical information and to always be able to visit with each other no matter what medical facility they are in. Our office regularly prepares these documents for our clients.

Of course the main reason for having an estate plan is to make sure that both you and your loved ones are taken care of in a case of illness or at the time of your passing. If the family members of a “non-traditional” couple do not approve of their marital choice, there is a possibility that a spouse’s inheritance rights may be challenged. Having strong estate planning documents in place can make it more difficult for disapproving family members to interfere with your plans for each other.
Authors: John R. Hope, Esq. and Samantha F. Gentel, Esq.

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