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SENIOR ADVOCATE

By Liza Horvath

 

State of Celebration

 

In 1993 the Hawaiian Supreme Court found that discrimination against same-sex marriage was a violation of the Equal Protection clause of the Hawaiian State Constitution. Since then there has been discussion, debate and legal rulings in most states regarding the recognition of same-sex marriages. With the Supreme Court’s “state of celebration” ruling in 2013 – meaning a recognition of the laws of the state in which a couple is married - most government agencies including Medicare, the Department of Labor, the Internal Revenue Service and more, have begun to implement either state of celebration or place of domain rules in the approval of benefits for same sex couples.

 

At the Federal level, the field seems to be somewhat smoother but that is of little help at the state level. Because of this lack of uniformity among states regarding the recognition and treatment of gay couples, estate planners agree that it is essential that gay couples take some extra, affirmative steps in their planning to ensure that all rights are protected to the extent possible and that the plan meets expectations.

 

Making your objectives clear through estate planning has always been extremely important but new and significant problems can come up when a migrating or traveling same-sex couple either passes through or moves into a state that has conflicting laws from the couple’s “celebration” state.

 

Imagine that you and your spouse are traveling through a state that does not recognize same-sex marriage and you have the misfortune to be involved in an accident that results in a trip to the local hospital. You are injured and unable to articulate your wishes but the hospital will not speak with, nor take direction from, your spouse. They may not even allow your spouse in to see you because the spouse is not considered “family.” The best way to address this concern is to travel with your important documents – in this case these documents include your Advance Health Directive or Living Will that clearly appoints your spouse as the agent to speak on your behalf.   

 

Getting documents prepared accurately can be a challenge in itself for same-sex couples - estate planning attorneys agree that planning for gay couples is particularly difficult due to the ever-changing legal landscape. Challenge or not, it is imperative that same-sex couples have a plan that will work so find an attorney who is knowledgeable about the issues that are presently at hand. Once the plan is in place, update it on a regular basis – possibly every other year – so that it will continue to be as valid in as many states as possible.

 

As we move forward, many yet-to-be-thought-of questions will emerge that will help estate planners be more proactive and accurate in their recommendations. Until then, if you are a married, same-sex couple traveling to or moving to a state that does not recognize your marriages, carry your documents with you. While unfortunate, without “proof” the implications could be devastating.  

Liza Horvath has over 30 years experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. If you have a questions call (831)646-5262 or email liza@montereytrust.com

 


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