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New estate planning options for same-sex couples

Many in Ohio are aware of the recent groundbreaking Supreme Court decision that legitimized same-sex marriage. As couples across the nation celebrate the ability to join in lawful marriage, they have also received many other benefits associated with married life. Among those benefits are estate planning options, some of which were previously unavailable to same-sex couples, no matter how committed their union may have been.

An example is found in the estate tax exemption, which currently sits at $5.43 million per individual. Married couples are able to maximize this benefit when one spouse predeceases the other, by means of portability. Portability means that the surviving spouse can retain any of that exemption that was not used by his or her partner, and apply it to their own estate. Before same-sex marriage was possible, gay couples had no way to gain that same advantage.

Another benefit lies in the designation of "spouse" for the purpose of any future legal action involving incapacitation. When an individual is unable to make his or her own decisions after a serious illness or injury, loved ones often get into serious legal battles over the right to make important financial or medical decisions on the individual's behalf. Now that same-sex couples are able to wed, those spouses will have a stronger position in a legal challenge. That said, it is always preferable to outline one's wishes in writing, so that the proper person is given power of attorney rights if that need should arise.

Within the recent Supreme Court ruling, same-sex couples have been given the same estate planning rights that heterosexual couples have enjoyed for so long. Portability of the estate tax exemption and incapacitation rights are just some of these benefits. For those in Ohio who have created an estate plan with their same-sex partners, it may be time to revisit the matter, and ensure that the best possible approach is being taken.

Source: The National Law Review, "Estate Planning for Same-Sex Couples After Obergefell", Terri R. Stallard, Aug. 7, 2015

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