Our firm has always been very friendly to members of the LGBT community, and until relatively recently, estate planning was particularly important for this segment of society. This is because of the fact that same-sex marriages were not recognized by the powers that be, so certain protections were not available.
Before we proceed any further, we should firmly state the fact that planning ahead in advance is important for all responsible adults, even legally married couples. You do not want to let the state laws dictate the way that your assets will be distributed for a number of different reasons.
There are also estate planning facets that are not monetary in nature. For example, you should prepare for latter life incapacity, and it is important to brace yourself for potential long-term care costs.
The above being stated, if you are married and you have made no plans in advance to prepare for incapacity or postmortem asset distributions, your surviving spouse would have rights.
If you were to become unable to communicate medical choices, your spouse would be called upon to act on your behalf. Of course, your spouse would be able to visit you in the hospital without any interference if you are in fact legally married.
When it comes to the postmortem asset transfers for an intestate estate, the probate court would provide supervision during the probate process. After final debts were paid, the assets would be distributed under the intestate succession laws of the state of Ohio.
As you might imagine, a surviving spouse would inherit everything under these circumstances. However, if there is no surviving spouse that is legally recognized and there are no descendants, the parents of the decedent would be the sole heirs to the intestate estate.
Back in the day before the evolution of the marriage statutes, legal steps were taken to ensure the rights of same-sex partners that would have otherwise gotten married. At the present time, things are different, and to a large extent, it is because of the courage and resolve of a woman named Edith Windsor.
United States vs. Windsor Supreme Court Case
Ms. Windsor and her longtime partner, Thea Spyer, were legally married in Toronto, Ontario in 2007. It should be noted that they were residents of the state of New York, and the following year, the union was recognized by the Empire State.
Spyer passed away in 2008, and she was in possession of a considerable store of resources. She left everything to her spouse, and the amount exceeded the federal estate tax exclusion that was in place at that time. The exclusion is the amount that can be transferred before the estate tax would become applicable.
It should not have been a factor, because there is an unlimited marital deduction. This allows for unlimited transfers between married couples free of taxation. However, because of the fact that the federal government did not recognize the marriage, the Internal Revenue Service forced Windsor to pay $363,053.
Clearly, she did not need the money, but she filed a lawsuit out of principle and the desire to set a precedent. Ultimately, she did just that when the case made its way to the Supreme Court. By a narrow majority, the Justices found in her favor in 2013.
They opined that Section 3 of the Defense of Marriage Act, which defined marriage as a condition that could only exist between a man and a woman, was unconstitutional. Since then, same-sex marriages have been recognized by the federal government, and this has changed the playing field forever.
Schedule a Consultation Right Now!
Regardless of your sexual orientation or your marital status, you should certainly discuss your estate planning objectives with a licensed attorney if you are currently unprepared.
We would be more than glad to sit down, get to know you, and gain an understanding of your situation. Ultimately, we can make recommendations and get to work constructing the ideal estate plan for you and your loved ones if you decide to move forward.
You can give us a call right now at 513-721-1513 to set up a consultation appointment. There is also a contact form on this website that you can use if you would rather send us a message electronically.