Gay Marriage; Unmarried Couple; Domestic Partners; Gay Couples; Lesbian Couples

Copyright 2009-2011, Marc S. Weissman
Certified Specialist: Estate Planning, Trust and Probate Law
Certified by the California Board of Legal Specialization of The State Bar of California
Weiss & Weissman, San Francisco, California
(650) 574-0362
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2009 update:

GAY MARRIAGE

What does same-sex marriage mean in estate planning? Now that same-sex marriage is legal in California, what does it mean for such couples? [This article does NOT address the other differences, which need to be explored and examined carefully be fore deciding what is best for your particular circumstances.]

Woops! 1st it's legal; then it's not. But if you got married when it was legal, what's it mean?

Same-sex marriage is not recognized by the Federal Government, so for Federal Estate Tax, the 'marriage' is ignored. [There is no California Estate Tax.]

A hetero-marriage recognized by the Feds allows the unlimited marital deduction. Husband can die and leave his Wife an unlimited amount, with no Estate Tax.

A same-sex marriage is not recognized for Federal Tax purposes, so if H1 dies and leave H2 more than the tax free amount at death Federal Estate Tax applies.

A typical hetero-Married Couple Living Trust is called an A-B/C Trust. H dies 1st. They were worth $8,000,000, owned equally, and H dies in 2011 when the tax free amount is $1,000,000.

A: $4,000,000
B: $1,000,000
C: $3,000,000 (This is a QTIP allowed to Federally recognized (hetero) marriages)
Tax: NONE

A same-sex married couple Living Trust may be done as follows. H1 dies 1st. They were worth $8,000,000, owned equally, and H1 dies in 2011 when the tax free amount is $1,000,000.

A: $4,000,000
B: $2,350,000
Tax: $1,650,000

Bottom line: nothing has changed as far as Federal Taxes are concerned. This is what we have done for gay couples for decades.

The real difference is that now the married same-sex partner has legal rights relating to:

property taxes (keeps Proposition 13 protection!!)
hospital visits and decision making
priority in conservatorships and being named as Executor.

But these are also issues we have worked with for decades for all clients, to make sure the proper people take over at the right time.

So, again, not much has changed. We still need to have the right paper in place to make sure it happens as best as possible, not for us, but for those about whom we care.