Estate Planning Considerations for Same Sex Couples

For many couples, regardless of sexual orientation, the idea of having to decide what to do if their spouse dies can be a tedious and emotional process. With so many resources for heterosexual couples, the LGBT community can often feel excluded from conversations about estate planning. 

Only four years ago, the historic Obergefell v Hodges (2015) decision upheld the right for same sex couples to marry in all 50 states. This decision gave same sex couples access to the same spousal rights as heterosexual couples with tools like the ability to file joint tax returns, adoption, divorce, and survivorship.

With any married couple, it’s important to recognize that just because your union is legal, doesn’t mean you shouldn’t have a proactive plan for your family and assets. Here are a few things for same sex couples to keep in mind when it comes to estate planning: 

Check Your Marital Status

Before it was legal in all 50 states, many couples who were married dissolved their relationships when they moved across state lines. Thinking that their relationship wasn’t recognized by the state they moved to anyway, they simply “broke up”. This break up was not legally recognized and caused confusion when a few states turned civil unions and domestic partnerships into legal marriages automatically after 2015. 

The Will 

A will is important for everyone, no matter the gender or relationship status. Over two-thirds of Americans don’t have a will set up and that can cause serious stress and emotional trauma when a loved one dies. A will makes certain that your wishes are followed. It’s also important to note that for years many wills were drafted for hetero-normative relationships much of the language used might not work out for an LGBT couple.

Powers of Attorney 

There are a variety of ways for same sex couples to have children and grow their families. While most parents want to ensure their assets are left to their children after they pass away, traditional estate planning language with terms like “children” and “descendants” can be exclusionary for LGBTQ families. Often, these terms refer to a direct bloodline, whether biologically or through adoption, so it’s important that both parents take steps to confirm their children as legally their own for purposes of estate planning.

Now is a great time to crosscheck that you’re taking advantage of all legal rights afforded to you under the law. Have questions about your estate plan or need to create one? Jen Hoverstad focuses her legal practice on helping clients plan for life’s unexpected circumstances. You can contact Jen by phone (919) 805-3104 or email