Cardoso Estate Planning Firm > Same Sex Couples

Estate Planning for Same Sex Couples

Author: Danielys Cardoso | 5 min of lecture | july 30, 2025

Understanding Legal Challenges and Progress for Same-Sex Couples

While the legal recognition of same-sex marriage in the U.S. was a monumental achievement, many LGBTQ+ couples still face lingering legal, financial, and familial complexities. Past discrimination, outdated state laws, and inconsistent treatment of LGBTQ+ families across jurisdictions mean that estate planning for same sex couples remains essential.

Whether married or in a committed relationship, couples must proactively address their legal rights to ensure their wishes are honored. This is especially true in matters of inheritance, medical decision-making, parental rights, and property distribution.

Why Estate Planning Is Still Crucial Post-Marriage Equality

The Supreme Court’s 2015 Obergefell v. Hodges decision granted same-sex couples the same legal recognition and benefits as opposite-sex couples, including rights to inheritance, tax breaks, and spousal privileges. However, estate planning is not automatic.

Here’s why planning is still necessary:

Family members may contest wills or deny LGBTQ+ partners’ rights.
State-level laws still vary in protecting parental and inheritance rights.
Some assets (like IRAs or business interests) require special attention.
Many LGBTQ+ couples are still unmarried, which excludes them from default spousal protections.

Proactive estate planning ensures peace of mind and protects against the unexpected.

Must-Have Legal Documents for Protection and Clarity

Every couple—especially same-sex couples—should have a set of legal documents that reflect their intentions clearly and leave no room for misinterpretation or dispute.

– Wills and Trusts

A last will and testament lets you name your spouse or partner as your heir and assign guardianship for children. Without a will, state intestacy laws could pass your estate to parents or siblings—excluding your partner.

A revocable living trust can:

Avoid probate
Offer privacy
Manage complex family dynamics
Ensure seamless asset transfer

Trusts are especially helpful for LGBTQ+ couples who have children, own property in multiple states, or own a business.

– Durable Power of Attorney

This document allows your partner or spouse to make financial decisions on your behalf if you’re incapacitated. Without it, even a legal spouse might have to go to court to manage your finances.

– Healthcare Proxy and Living Will

These tools ensure your partner or spouse has the right to:

Make medical decisions
Access your medical records
Carry out your end-of-life wishes

In emergencies, hospitals often defer to legal next of kin unless you have these documents in place.

Special Considerations for Unmarried LGBTQ+ Couples

Unmarried same-sex couples do not receive the same automatic rights as married ones. Without proper documents, your partner might be:

Barred from hospital visits or medical decision-making
Unable to inherit property without probate
Left out of life insurance or retirement accounts

Key steps include:

Creating a will and/or trust
Executing healthcare and financial powers of attorney
Updating all beneficiary designations

Even if you’ve been together for decades, the law doesn’t recognize your relationship without proper documentation.

Children, Guardianship, and Adoption in Same-Sex Estate Plans

For same-sex couples raising children—whether through adoption, surrogacy, or previous relationships—parental rights and guardianship must be clearly outlined.

Important considerations:

Legal Adoption: If both partners aren’t legal parents, the non-legal parent could lose custody rights if one dies.
Guardianship Designations: Name a trusted guardian in your will in case both parents pass.
Trusts for Minor Children: Set up a trust to manage assets for children until they reach maturity.

Planning is especially critical in states where LGBTQ+ parental rights are inconsistently enforced.

Tax and Property Considerations Unique to Same-Sex Couples

Marriage equality brought many tax benefits to LGBTQ+ couples, but some unique concerns remain.

Here are a few:

Estate Tax Exemptions: Married couples can pass unlimited assets to each other tax-free. This is not available to unmarried partners.
Gifting Rules: Same-sex married couples benefit from gift splitting and spousal exemptions. Unmarried partners do not.
Real Estate Titling: Ensure jointly owned property reflects your intentions (e.g., joint tenancy with right of survivorship).

Work with an estate planning attorney who understands these nuances and can help navigate both federal and state-level issues.

FAQs: Estate Planning for Same Sex Couples

Do same-sex married couples have the same estate rights as opposite-sex couples?

Yes, under federal law. However, some state-level issues and outdated policies still require careful estate planning.

What if we're not legally married?

You must have legal documents (will, trust, powers of attorney) to protect your partner, since unmarried partners don’t have default rights.

Can we jointly adopt our child and name guardians?

Yes, and it’s strongly recommended. Ensure both partners have legal parental rights and designate a guardian in your will.

Should we create a trust or is a will enough?

A trust offers greater control, avoids probate, and provides privacy. It’s ideal for complex family situations or high-value estates.

How can we avoid family disputes over inheritance?

Clear documentation, a revocable living trust, and an open conversation with family can prevent misunderstandings or legal challenges.

Do we need to update our estate plan after getting married?

Absolutely. Your legal status has changed, and your documents must reflect that to ensure legal protection.

Your Rights, Your Legacy, Your Peace of Mind

Estate planning for same sex couples is more than just a legal process—it’s a powerful tool to affirm your relationship, protect your partner and children, and ensure your wishes are honored.

Even with full marriage equality, planning remains crucial, especially for unmarried couples and LGBTQ+ families navigating unique legal landscapes. From wills and trusts to guardianship and healthcare decisions, a customized estate plan gives you the confidence and control to face the future with peace of mind.

Next Step: Consult with an estate planning attorney who has experience working with LGBTQ+ clients to craft a plan that reflects your love, protects your rights, and preserves your legacy.

DANIELYS CARDOSO

Danielys is an experienced Estate Planning Attorney who helps Florida families and professionals protect their legacy with customized wills and trusts through her boutique law firm.

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