Same-sex couples can’t rely on default rules

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The U.S. Supreme Court will rule imminently on whether the Constitution requires states to allow same-sex marriage. Regardless of the decision, people involved in a single gender relationship should bullet-proof their estate planning, says Matthew T. McClintock, vice president of education at WealthCounsel.

“No one — neither opposite-sex nor same-sex couples — should ever have to rely on default rules,” McClintock says.

Same-sex couples should start by finding an attorney to work with them. “I know that it is challenging for same-sex couples in some areas to find both competent and sensitive help, but you need somebody who is both,” McClintock says.

Seek out someone you feel good about working with. “Find someone with whom you have a strong relationship chemistry. There has to be a high level of trust for the attorney to create a solution that makes sense for the client,” he adds.

Put your trust in a trust

Even if the current high court decides in favor of same-sex marriage, McClintock believes that in many cases a same-sex couple is best served by setting up revocable living trusts, naming each other as successor trustees. This means that if one of the partners becomes disabled or dies, the other partner can distribute the assets in the trust without having to go through probate. Without this protection in place, a judge might assign a relative to make health or — after death — distribution decisions. If there are no living relatives, he might also assign a guardian who could be a stranger, ignoring the person’s life partner.

There is an increased risk of this happening if someone files a lawsuit over some aspect of your estate. “This decision may bring some specific rights to same sex-couples, but that doesn’t negate the need to proactively plan,” McClintock says.

Putting together this kind of plan isn’t cheap. Depending on where you live, McClintock estimates that you might spend anywhere from $2,500 to $7,000 for this kind of legal advice. If you absolutely can’t afford it, you might consider simple wills and naming each other beneficiaries, as well as signing health care proxies and powers of attorney.

Even so, McClintock advises against a totally do-it-yourself approach. “Applying the nuances of state and federal law is complicated. Unfortunately, you don’t know you have a bad plan until it is time to use it.”

The upcoming court decision could also impact estate taxes, but some issues will probably remain.