Estate planning for gay couples: what to sort out before you retire together

If you're married

In the US, same-sex couples have been able to marry in every state since the Supreme Court's 2015 ruling in Obergefell v. Hodges. Married same-sex couples are treated like any other married couple, so much of their planning looks the same. Assets left to a surviving spouse are generally exempt from federal estate tax, for example (Nolo). The main exception is a spouse who isn't a US citizen, where special planning, such as a qualified domestic trust, may be needed (IRS, Form 706 instructions). That matters if you're planning to retire abroad together.

Social Security is worth a closer look. Survivor benefits usually depend on having been married for at least nine months, though there are some exceptions. Because many couples couldn't marry until 2015, two court cases now help some surviving same-sex partners. Ely covers people denied because their marriage was too short, and Thornton covers people who never married because the law wouldn't let them. Eligibility depends on each case, so read Social Security's guide to survivors benefits for same-sex partners and spouses and contact them directly. People who were turned down before can ask for their claim to be looked at again.

If you're not married

If you die without a will or a living trust, state inheritance rules decide who gets the property they cover, and an unmarried partner may receive nothing from it (Nolo). The details depend on your state and on how things are owned. A home you own jointly, or an account with a named beneficiary, may pass outside those rules altogether. They may also have no legal right to make medical or money decisions for you. So the documents below aren't optional for unmarried couples. They're the surest way to give your partner a say.

The documents to have

A will, or a living trust. A trust can help avoid probate, which can be slow and expensive, but only for the assets you actually move into it.

A durable financial power of attorney, so the person you choose can manage your money if you can't.

A health care directive that names who makes medical decisions for you. This matters most if your family hasn't fully accepted your relationship.

Up-to-date beneficiary forms on bank accounts, retirement accounts and life insurance. Many of these pay out to whoever is named on the form, so check them, especially after a breakup.

You don't have to name a relative for any of these roles. A partner, a close friend or someone from your chosen family can be your executor or your agent.

If family might object

If you think a relative might challenge your wishes, tell your lawyer. A no-contest clause in a will or trust can discourage a challenge, although not every state enforces them (Nolo). Keep copies of your documents somewhere the people you've named can find them.

In England and Wales

The rules are different, but unmarried partners face the same risk. If you die without a will, a partner you weren't married to or in a civil partnership with can't inherit under the intestacy rules. They don't inherit automatically. Instead, they may be able to ask a court for reasonable financial help from your estate. Having lived together for at least two years before the death usually matters for that claim, and it has to be made within a time limit (Citizens Advice).

A husband, wife or civil partner does inherit. If you have no children, grandchildren or great-grandchildren, they get the whole estate. If you do, they get your personal belongings, the first £322,000 and half of the rest, and your children or other descendants share the other half (HMRC).

For decisions while you're alive, you can make a lasting power of attorney. There are two kinds, one for property and money and one for health and welfare, and you can make either or both. You have to register it with the Office of the Public Guardian, which costs £92 and takes 8 to 10 weeks if there are no mistakes. It only applies in England and Wales, so Scotland and Northern Ireland have their own arrangements (GOV.UK).

When to see a lawyer

See one if you own a home together, have children or a previous marriage, expect family to object, have property in more than one state or country, or simply want it done properly. An LGBTQ+-friendly lawyer will have seen your situation before. You can look for one in the Among Our People professionals directory.