Estate plans are not just for people who have a lot of money or own a number of assets. Estate planning encompasses much more than divvying up a large estate upon death. Wills, trusts and other estate planning documents assist you with plans made while you are still alive, as well as providing for your loved ones after your death. These documents are especially important for same-sex couples.
Unmarried same-sex couples
If you are unmarried and do not have even a simple will, Illinois laws will determine who will receive your assets – even your personal items – upon your death. Typically, close relatives are first in line to receive your estate and make decisions on your behalf. Your chosen family will have no legal recourse if your biological family makes decisions against their interest.
An estate plan is comprised of a number of documents, such as:
- Durable power of attorney for property: Allowing you to appoint someone to make your financial and personal decisions on your behalf if you are still living, but no longer able to do so
- Health care power of attorney: Naming someone you trust to make your medical decisions if you are not able to speak for yourself
(If you wish to be cremated, it is important to have this in writing; otherwise, the medical institution may not be able to honor these wishes.)
- Will: Providing for your loved ones upon your death
- Trust: Keeping your wishes for how to distribute your estate private
While your family and friends may know your intentions, put your wishes in writing in order to make them legally binding.
Married same-sex couples
In June of 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges struck down same-sex marriage bans across the country. Government, tax and health care benefits previously enjoyed only by married opposite-sex couples are now available to married gay and lesbian family law.
However, in the aftermath of the landmark decision, you should know two things:
- In order for all of these additional benefits to come into play automatically, you must be married – domestic partnerships or civil unions are not enough in Illinois despite the passage of the Illinois Civil Union Act.
- If you established an estate plan before the Obergefelldecision, it is important to review your plan with an experienced estate planning attorney.
Your existing estate plan may no longer do all you want it to
If you took the smart route and legally established your partner’s rights to your estate, it is vital to review. Safeguards and special provisions you included in your estate plan prior to Obergefell may no longer work to your best advantage.
For example, as a married couple, you may now utilize the unlimited marital deduction. Additional issues to discuss with your lawyer include:
- Life insurance policies: Review your individual life insurance policy to determine if another policy or beneficiary designation may be more appropriate.
- 401(k) plans: Your spouse must provide consent if you wish to designate someone else as your beneficiary.
- Employee benefits: If your employer previously denied your same-sex spouse certain rights, he or she should now have the same rights as an opposite-sex spouse.
- Retirement accounts: A surviving spouse is not required to take certain distributions upon a rollover from a deceased spouse. It may be advantageous now to name your same-sex spouse as your beneficiary.
If you do not have an estate plan or have not reviewed your plan with an attorney since June of 2015, Jill M. Metz & Associates, Attorneys at Law, in Chicago will help you. We are proud to serve the LGBTQ community in Illinois.