The landmark United States Supreme Court decision, Obergefell v. Hodges, completely changed the landscape for all LGBTQ individuals in committed relationships, including those considering marriage or having been married in a state that permitted such a fundamental right.
Because of Obergefell, you now have certain rights that were previously only guaranteed to heterosexual married couples. If you were not married, and do not plan on marriage, for now, you still may wish to consider estate planning or a cohabitation agreement. If you had an estate plan in place before Obergefell, and were or have since gotten married, you should consider having your estate plan reviewed.
Many of those within the LGBTQ community likely did what they could in some form or fashion to plan for the death or incapacity of their partner before Obergefell. While there’s no doubt every individual in the LGBTQ community has celebrated the landmark civil rights case, few have taken the time to evaluate what will happen upon the death of their loved one.
Access the Spousal Rights Guaranteed By Obergefell
A higher than average number of LGBTQ couples seem to end up having to deal with some form of adversarial proceeding because of issues among family, especially family members who refuse to accept the individual’s partner/spouse.
But now, if you were legally married to your partner, the family or outside forces are hard-pressed to try to deprive you of things like an elective share. An elective share protects the spouse of someone who passed away, allowing them to “elect” to receive 30% of the estate, regardless of the terms of the will.
Of course, this depends on several factors, including whether you were a party to a prenuptial and/or postnuptial agreement. Prenuptial and postnuptial agreements, accordingly, are also something you are now more readily able to enter into. A Palm Beach County LGBTQ estate planning attorney will take these rights into consideration in your overall Florida estate planning objectives.
Estate Planning for Unmarried Partners in Florida
If you have been with your partner long enough to agree that you are individually or both interested in preserving your rights, or that you want your partner to have decision-making capabilities should something happen to you, then you should consider an estate plan.
Estate plans can be as simple as a last will and testament leaving your assets to your significant other, or as complex as creating trusts that hold assets, and advanced directives and other documents that grant your partner the ability to make decisions on your behalf if you cannot, and in some instances even if you can.
Alternatively, if you want to lay out certain agreements or rights, but do not necessarily feel comfortable with an estate plan quite yet, you may want to consider what is known as a cohabitation agreement. These types of agreements are a contract of sorts, and Florida allows unmarried couples to enter into these agreements to lay out things like your rights and responsibilities toward each other.
Married Prior to Obergefell? Consider Revising Your Estate Plan
A lot of planning prior to Obergefell was created to maximize certain rights and minimize certain impacts in an effort to mirror protections afforded to heterosexual marriages as closely as possible. However, certain protections, such as the elective share, and certain tax protections, could not realistically be considered until after Obergefell.
It goes without saying that if you have an estate plan that pre-dates 2015, then it should be reviewed by a qualified Palm Beach County LGBTQ estate planning attorney to ensure you, and your significant other, are still not only properly protected, but that you are also taking advantage of all of the protections afforded to you in the state of Florida.
Speak with a Florida and Palm Beach County LGBTQ Estate Planning Attorney to Get Started
Questions about any part of the estate planning or administration process? Speak with a Comiter, Singer, Baseman & Braun Florida and Palm Beach County LGBTQ estate planning attorney, either online or by calling us at 561-626-2101 or toll-free at 800-226-1484. We work with estate planning and administration clients throughout the state of Florida including the areas of Boca Raton and Palm Beach Gardens.