Since the Supreme Court’s Obergefell v. Hodges decision, same-sex marriages are recognized nationwide, and many estate planning needs mirror those of opposite-sex couples. But when children are involved or when partners rely on nonmarital legal statuses (like domestic partnerships or civil unions), extra steps help ensure your wishes are honored. Start by putting it in writing. Without legally binding documents, state default rules control who inherits and who can make decisions. For example, if Jose and Pedro are married and Jose has a separate minor child whom Pedro has not adopted, most states require Jose to provide for his minor child and will not allow Jose to leave everything to Pedro. Clear, written directives included in wills, beneficiary designations, and related documents help to prevent unwanted outcomes.
Next, consider a revocable living trust. A trust allows assets to be managed and transferred without probate, and if one spouse becomes incapacitated, it can avoid a court-ordered guardianship by designating who will manage finances and how. Without a trust, a judge could appoint a relative, or even a stranger, to make decisions about health or assets during incapacity, and a separate court process will be required to administer the estate after death.
Finally, establish rights that protect your family day-to-day. Place cash, investment accounts, and real estate into joint ownership so they pass automatically to the surviving joint owner. If only one spouse or partner is a biological parent, have the other legally adopt the child to establish full parental rights and ensure custody if the biological parent becomes incapacitated or dies. These actions reinforce your written plan in the real world. Same-sex couples who are in a domestic partnership or civil union rather than a marriage should consult an estate planning attorney to confirm their documents provide the same protections and privileges as a legally recognized marriage in their state.
If you would like to learn more, or set up a complimentary estate planning consultation with one of our Madison, Wisconsin estate planning attorneys, please contact us and we can schedule a time to meet.