While the end of DOMA is wonderful, it doesn’t solve all problems for same-sex couples. The lifting of DOMA restrictions only applies to married same-sex couples. Unmarried same-sex, and also opposite-sex, couples have unique issues and concerns when creating an estate plan. Various techniques and tax saving vehicles are unavailable to unmarried partners.
Joint trusts are unadvisable for unmarried partners since the couple does not enjoy marital exemptions in gifting. Unmarried partners may choose instead to have separate trusts with identical provisions. For example, when one partner dies the other inherits everything.
Gifts made between unmarried same-sex partners are subject to lifetime gift exemptions. Also, any gifts made in excess of the annual exclusion ($14,000 for 2013) must be reported on IRS Form 709.
Agents for POA/Advance Health Care Directive
We strongly advise same-sex couples to ensure that they have valid Power of Attorney and Advance Health Care Directives. Without them, your partner may not have any access to your health care information or finances. It is legal and common for life-long partners to be denied access to medical records if the ill partner did not have a valid Advance Health Care Directive in place.
Without a will (or trust) the surviving partner has no legal standing to inherit from his/her deceased partner’s estate. Too many tragic stories have ended with surviving partners inheriting nothing from their loved ones estate since the survivor was not named in a Will.