What We Know

The US Supreme Court Ruled on Gay Marriage…What Does It Mean For Estate Planning?

February 10, 2016 | by Cara Williams

When the US Supreme Court ruled in June of 2015 that a state ban on same-sex marriages is unconstitutional and in violation of the equal protection clause of the 14th amendment, it changed the way estate planning attorneys think about estate planning for same-sex couples and domestic partnerships. As a result of the decision, there are also several factors same-sex couples should consider. In an article written by the Trust and Estates Advisory Group of the Katten Law Firm, “Eight Key Estate Planning Opportunities Arising From the Supreme Court’s Decision on Same-Sex Marriage,” they point out the eight most important things to consider from an estate planning perspective.


We should take the time to consider:  

  • Married couples receive several tax breaks that same-sex marriages are now eligible to receive. Since the marital deduction is unlimited for estate and gift tax, this is something all same-sex couples should consider when deciding whether or not to remain a domestic partnership or to take the plunge and get married.
  • Same-sex married couples should consider revising their current estate planning documents to make sure that the bequests given to spouses are still appropriate.
  • Couples should review their retirement account beneficiaries once married because a surviving spouse can rollover a deceased spouses’ retirement account without being required to take minimum distributions until the required minimum age.
  • Couples should consider replacing individual life insurance policies where each spouse is the designated beneficiary of the other spouse with survivor policies.
  • Each spouse should consider splitting gifts between them. Before the Supreme Court decision, each spouse could make gifts up to the annual exclusion amount. Now, each spouse may make gifts from his/her own assets and have these gifts considered to have been made 1/2 by the other spouse.
  • If living in a community property state, there may be some benefit to converting separate property into community property.
  • Tax returns should be amended both for this year and the previous year to reflect the marital status.
  • If there is one spouse that is not a citizen, they can now seek their residency or citizenship.  

Cara Williams is an associate attorney at Smith Debnam, concentrating her practice in creditors’ rights litigation and foreclosure, estate planning, and probate litigation. She represents lenders, acting as substitute trustee on behalf of secured parties in foreclosure and providing professional counsel on loan transactions and lien issues. Cara authors a blog titled: North Carolina Estate Litigation and Elder Law - where she covers important issues with respect to estate planning and elder law. Prior to joining Smith Debnam, Cara was the Assistant Clerk Attorney for the Wake County Clerk of Court where she was the hearing officer for foreclosures, guardianships, estates, and various civil matters....LEARN MORE

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