Same-Sex Marriage and Estate Planning


equalpeple1In a landmark decision, the Supreme Court of the United States on June 26, 2015 held that same-sex couples could marry nationwide.  This is a turning point in our history and a step forward in civil rights as a nation to recognize marriage between two people, whether gay, lesbian, or transgender. As Justice Kennedy eloquently stated, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.”  He then also states, “In forming a marital union, two people become something greater than they once were.”


Now that more same-sex couples will marry, one of the things to consider is estate planning.  As marriage is a major step in anyone’s life, there will be certain considerations that gay and lesbian couples should take into account.  This includes among the more common topics such as whether to have a trust, will, or both.  Also, what type of trust would be the best suited in your situation.  Also to consider is who to leave the property at death, how to divide it, and when to have each beneficiary receive it.  Among all these estate planning considerations, possible additional special considerations include situations when same-sex couples adopt children or when children are born through artificial insemination or when there is a surrogate mother.  In these instances, it is important to draft the trusts or wills in such a way to ensure that those children receive their share.


As the nation welcomes more and more same-sex, gay, and lesbian couples into the institution of marriage, we will face new and unforeseen challenges.  Through these challenges, we as a nation will grow through the various creative solutions to these challenges, whether in the area of estate planning or anything else.  We at MB Legal Services are happy to face and overcome any estate planning challenges that you may come across to achieve your goals and desires.

Estate Planning for Gay Couples

Estate planning for LGBT Same-sex couples have unique concerns when creating an estate equalpeple1plan.  Here are six estate planning issues that same-sex couples should consider, and some resources for further help.

Read more about Estate Planning for Gay Couples.

1.    Will

A will is the heart of any estate plan. It is a simple, powerful, and relatively inexpensive document that you may be able to make yourself. With a will, you can :

  • determine who will inherit your assets
  • nominate a guardian for your children
  • arrange for an adult to manage any assets children inherit, and
  • name an executor.

You can also use your will to name a caretaker for a pet, direct how taxes should be paid, forgive debts, and more.

If you do not make a will, you will die intestate, and your property will be distributed according to the intestate succession laws of your state. Dying intestate almost always has an undesirable effect.  This is especially true for same-sex couples because intestate succession laws rely on the legal relationships of marriage – so if you are not married, or cannot get married in your state, intestate succession laws may leave your partner with no right to your property.  Learn more about Intestate Succession.

You can make a simple will yourself with a quality will-making program like Quicken WillMaker Plus.  If you want a more complicated will, see a lawyer for help.

Learn more about Wills on

2.    Probate Avoidance

Probate is the court process of wrapping up your estate.  Probate can be a long and expensive process, and it is rarely a benefit to the estate. There are ways to avoid probate, and many estate plans focus on doing so.

Avoiding probate may be more complicated for same-sex couples because, in most states, they cannot take advantage of laws that allow property to pass to spouses without probate.

You can avoid probate by using these estate planning tools:

Additionally, most states have simplified probate procedures for small estates. So if you don’t have much property, you may not need to plan for probate at all.  Learn more about Probate Shortcuts in Your State.

Read more about How to Avoid Probate and Avoiding Probate in Your State.

3.    Health Care Directives

Health care directives let you set out your wishes for end-of-life health care, in case you cannot speak for yourself. There are two pieces to a health care directive:

  • the living will or declaration, in which you state what kind of care you want or don’t want, and
  • the power of attorney for health care, in which you name a person to make health care decisions for you if necessary.

Health care directives are a vital aspect of a same-sex couple’s estate plan, because they give healthcare professional clear and legal instructions for providing care – without room for any speculation about the legality of the couple’s relationship.

Learn more about Health Care Directives.

4.    Financial Powers of Attorney

With a financial power of attorney, you give another person power over your finances. You can make a limited power of attorney for a specific purpose or time, or a durable power of attorney, in which you name someone to take care of your finances in case you become incapacitated and can’t take care of them yourself.

If you anticipate incapacity, or just want to make sure that your partner is named to take care of your finances in case of emergency, consider making a durable power of attorney.

Learn more about Financial Powers of Attorney and how Health Care Directives and Financial Powers of Attorney can work together to protect you and your partner.

5.    Estate Taxes

Most people do not have to worry about estate taxes, but if you do and you and your partner are not married, you won’t be able to use many of the tricks that married couples can use to avoid these taxes.

The Federal Estate Tax Exemption Is Very High

Only estates worth more than $5.25 million will pay federal estate tax in 2013. So, if you die in 2013, and you leave taxable assets worth less than $5.25 million, you don’t need to worry about federal estate tax. And all assets left to a surviving spouse — including a validly married spouse of the same sex — are exempt from federal estate tax.

One caveat: Find out whether your state has its own estate tax. Of the states that do, most exempt less than the federal government does. So, your estate could end up owing state estate tax, even if it doesn’t owe federal estate tax. Read State Estate Taxes to learn about the estate tax in your state.

Planning to Reduce Estate Taxes

If you are worried about estate taxes, you and your partner should see a lawyer or tax professional to discuss how to reduce them. For example, if you and your partner are married, leaving everything to each other, and are worried that your combined estate may cause the surviving spouse to owe estate tax, you can use the “portability” provision of the tax law, or use a bypass trust to give the surviving spouse access to the first spouse’s property, without having that property included in his or her taxable estate. Learn more about reducing estate taxes in the Estate Tax section of

6.    Final Arrangements

As part of your estate plan, you and your partner should also consider making a final arrangements document. In this document, you lay out your wishes and plans for your final arrangements.  You can specify your wishes, in as much detail as you choose, about:

  • burial or cremation
  • embalming
  • caskets and urns
  • headstones or burial markers
  • ceremonies, and
  • paying for final arrangements.

While this document is not legally binding, it can come as great relief to those who must take care of these details after you die. Knowing what you wanted can calm concerns and put to rest any questions about your final wishes. This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest.

A final arrangements document is one of many documents available with Quicken WillMaker Plus. This program – with which you can also make a will, healthcare directive, and financial power of attorney — walks you through all of the issues listed above, allowing you to leave as much or as little detail as you like about your final wishes.


This is a good article we found on that fits what some of our clients have expressed concerns in.

Estate Planning is Life Planning

It seems like there is always some discussion in Congress about changing the estate tax.  There even have been proposals to eliminate the tax permanently.  If Congress ever eliminates the tax, does this mean that there will no longer be a need for estate planning?  No, it does not.

Estate Planning is Life Planning

Estate Planning is Life Planning

Estate taxation is just one of many considerations that go into Estate Planning.  According to Estate Tax: Myths and Realities, a study by the Center on Budget and Policy Priorities revised in 2005, approximately 99 percent of estates pay no estate tax at all.  There are other taxes that are far more important for most people, including income taxes and capital gains taxes.


But, even lumped together, taxes are not the primary motivation for Estate PlanningEstate Planning is organizing your life to achieve your goals, both now and after you are gone.  This includes:

  • Organizing your assets to minimize the impact of disability
  • Avoiding probate
  • Minimizing income taxation
  • Protecting your assets from creditors
  • Ensuring your children’s futures
  • Instilling your values in your descendants


It has often been said that he who fails to plan plans to fail.  It is true in Estate Planning as in any other endeavor.  Without planning, you will leave those you love with a mess on their hands.  For example, without planning, your incapacity could prove a nightmare.  Who would pay the bills?  How would they get the authority to do so?  They would have to go to court and have you declared incompetent and have someone appointed as your guardian / conservator.  This tedious process would come just as your family would be dealing with the financial and emotional drain of your disability.  Any disagreements in the family would make the process even more problematic.


There is a better way.  You can plan ahead and avoid these problems and achieve your goals.  The basic documents of an estate plan can help you plan for your future and that of your loved ones.  A Revocable Trust helps you avoid probate and is very flexible.  The trust helps you provide for your own incapacity.  Later, after you are gone, the trust can help reinforce the values you have taught your children.  It can do that by encouraging or discouraging certain behavior.  For example, the trust can match income in certain altruistic professions.


A General Durable Power of Attorney can appoint someone to make financial decisions for you in the event of your incapacity.  A Health Care Durable Power of Attorney can appoint someone to make healthcare decisions for you.


Whether or not you are in the 1% of Americans that may be subject to estate taxes, Estate Planning is life planning.  An Estate Planning attorney can help you plan for your future and that of your descendants.






Estate Planning Devices

Estate Planning Devices


Estate planning devices are used to transfer your property to your beneficiaries after death.  The two most popular estate planning devices are will and living trusts.  A will leaves some or all of your property to beneficiaries of your choice.  It also can be used to name an adult guardian for your young children.  The major disadvantage of a will is that generally it must go through probate.  Probate is a costly and complex court proceeding that rarely provides any real benefit to your beneficiaries.  A living trust on the other hand is similar to a will but has the advantage of avoiding probate.



MB Estate Planning Estate Planning Devices 818.925.5293

Other ways to transfer property while also avoiding probate include pay-on-death accounts, transfer-on-death real estate deeds, transfer-on-death vehicle registration, and joint tenancy.  Under the laws of joint tenancy, the surviving joint tenant automatically receives the interest of the deceased joint tenant without going through probate.  Generally, all of the above estate planning devices except for joint tenancy may be changed, amended, or revoked at any time and for any reason before your death.  However, in order to do so, you must be legally competent. Being legally competent basically means having the mental capacity to make and comprehend your decisions regarding your property. It is also important to understand that the above estate planning devices do not reduce the value of your estate at death for estate tax purposes.  Please advise your estate planning attorney if you believe your estate may be subject to estate taxes.

Estate Planning Overview

Estate Planning Overview


MB Legal Services Estate Planning 818.925.5293

Estate planning is basically deciding who gets your property and how the  property will be transferred at your death.  Many hesitate or post-pone making an  estate plan for many reasons.  Whatever the reason is, it is nonetheless important to  have at least a basic estate plan if you own any property that matters to you and/or you  have any minor children (under 18).  This is especially true if you own an property that  you want to go to a specific person after death.  The major concerns for those with  minor children are who will be raising the child and who will be making the children’s  financial decisions.  Legally, minors cannot own any significant amount of property  outright.



When making an estate plan, there are of course many other things to consider.  For instance, planning for incapacity where you are not able to take care of your medical and financial affairs.  It is important to determine who will be responsible to make those decisions for you. Also, another concern is the possibility of your estate being subject to estate taxes upon your death.  Further, another concern that is common to anyone is probate.  Probate is a costly and time-consuming legal proceeding where the court is involved in determine who receives your property at death.


With all these reasons to have an estate plan, the next question is how can all this be accomplished.  There are several common devices used in estate planning.  Some of the most common devices used are wills, living trusts, powers of attorney and healthcare directives.  Wills and trusts to leave some or all of your property to beneficiaries you choose.  However, unlike a will, trusts are not subject to probate.  Nevertheless, pour over wills are commonly used in combination with trusts.  Powers of attorney and healthcare directives are used to allow a person of your choosing to make financial and medical decisions in case of incapacitation.




An estate planning device is tools that estate planning attorney or individuals use when making an estate plan.  There are various devices in estate planning and I will discuss the basics of some of them here.  Some of these devices include wills, trusts, powers of appointment, and powers of attorney.


Wills: A Will, also known as testament or last Will, is a legal device where the testator names the person or persons who will manage his or her estate and states how his or her estate will be distributed at death.   At the testator’s death, the Will may be challenged in probate court.  If the court finds that the will is invalid, then the distribution of the estate will proceed under the laws of intestacy.


Trusts: A trust is an entity created to hold property.  The trustee holds the property for the beneficiaries’ benefit.  By transferring property to a trust, an individual is able to avoid having that property go through probate.  Trusts are commonly used for many purposes.  The terms of the trust are kept private unlike the terms of the Will which are may be made public in probate.  A trust can also provide more control as to how and when property is to be distributed at death.  Another purpose is if the individual wants to create a charity at death and use the accumulated wealth to benefit others through that charity.  The charity would then take the form of a trust.


Powers of Appointment:  Powers of appointment allow the testator to grant authority to a person to dispose of certain property under the will.  There are two types of powers of appointment, general and specific.  General power of appointment allows the holder of the power of appointment to appoint himself or his or her creditors to have the beneficial use and enjoyment of the specific property under the power of appointment.  A specific power of appointment on the other hand, allows the holder of the power of appointment to distribute the property among a specified group of people.  Depending on whether it is a general or specific power of appointment, the tax consequences may differ.


Powers of Attorney:  A power of attorney grants another person to act on your behalf, whether in private affairs, business, or legal matters.  Powers of attorney come in many variations such as the durable, healthcare or springing powers of attorney.





Before being able to answer what is estate planning, we must determine what is an estate in the first place.  An estate is essentially everything you own.  This includes all tangible and intangible possessions such as your care, any real estate you own, money, jewelry, life insurance, checking and savings accounts and investments to name a few.  Therefore, everyone has an estate, no matter how small or large.  An individual’s estate must be disbursed at the time of their death.


Estate planning is used to control how your estate is disbursed after death.  Essentially, an estate plan is a set of instructions stating who receives what part of your estate and when do they receive it while also minimizing the amount of taxes, legal fees, and court costs.  The recipients of any part of an estate are called beneficiaries.  If an individual does not have an estate plan, then the default rules are provided by the State, which is generally costly and is not in line with the individual’s intentions of how to disburse their estate at death.


Estate planning is for everyone, no matter how old or young, wealthy or not, because everyone has an estate.  An estate plan has other benefits besides fulfilling the individual’s wishes of how to disburse their estate and creating one does not have to be expensive.  Among other benefits, an estate plan helps you organize records and correct titles, provides peace of mind knowing that your wishes will be fulfilled and the right beneficiaries will receive what you intend them to receive, and it can maximize the amount your beneficiaries receive by minimizing the taxes and costs paid by your estate.