Financial Planning Advice for Same-Sex Couples

Here are the steps you need to take to provide financial and legal protection to your families.
Author:
Publish date:

Alaska Congressman Bob Lynn, who co-sponsored a resolution to deny partners of gay state employees the same health benefits given to married spouses, is not exactly a friend to the gay community. Nevertheless, he reportedly has good advice that every same-sex couple should heed: "Go get health care on your own."

While his heart may not have been in the right place, his advice should not be overlooked -- and it goes beyond just health care. Same-sex couples need to do a lot of financial and legal work in order to protect themselves and their families as effectively as married couples can.

"We don't get these rights by saying 'I do'," says Carrie Stone-Ross, a civil rights advocate and former lawyer who runs West Virginia-based

Rainbow Law

, a legal document preparation service catering to the gay community that she started with her partner Elisia Ross-Stone. "It's really a lot of work."

According to the American Civil Liberties Union, there are more than 1,000 federal and state benefits offered only to married couples. And 28 states currently define marriage strictly as a union between a man and a woman, according to the Heritage Foundation, a conservative organization that opposes gay marriage.

These legal definitions prevent same-sex couples from enjoying the same tax, inheritance and employment benefits as married couples. "If someone wants to provide for their partner what the law doesn't give them, they need to make up for it with estate planning," says Tanya Harvey, an estate-planning attorney in the Washington, D.C., office of Bryan Cave.

Harvey says that perhaps only 5% of same-sex couples have wills or estate plans. "And it is more difficult and more important for same-sex couples."

This disparity can hit couples with children particularly hard. Dennis Patrick, a communications professor at Eastern Michigan University, his partner of 10 years and their four adopted boys are among 21 families who have filed a class-action lawsuit against the state over its constitutional amendment against gay marriage.

Patrick's partner is the primary caregiver of the boys, aged 5 to 11, all of whom come from foster care and have special needs. He works part-time, making him ineligible for health benefits on his own. He is currently still covered by Patrick's insurance, but his benefits are set to be revoked under the state's constitutional amendment.

"Right now it leaves benefits for my partner up in the air," Patrick says. "The university has said that they will only guarantee the health benefits through the end of the year. But we don't know what will happen after that."

If the benefits for his partner are revoked, it will cost Patrick at least $400 a month for the same health, dental and vision care his partner now gets through the university.

Michigan's state supreme court has agreed to hear the case.

Ross-Stone says it was situations like this that prompted her to give up a job as an attorney to found Rainbow Law. While the service is not allowed to give legal advice, Ross-Stone says Rainbow Law is a good source of information for people who either cannot afford expensive attorney fees or who are afraid of "outing themselves."

Ross-Stone leads by example. Her family, which consists of her partner, three adult children (from a previous marriage) and two grandchildren are all covered with the estate-planning works: She and her partner both have revocable trusts, power of attorney, livings wills and medical power of attorney.

While this kind of paperwork can be costly and time-consuming, it is vital to the financial security of any same-sex couple and their families. That's because, unlike legally married couples, same-sex couple are not viewed by most states as a single entity. So partners cannot act on each other's behalf should one of them become incapacitated. In fact, as far as the law is concerned, same-sex couples have no rights or claims to each other's affairs.

Massachusetts is the only state that officially recognizes same-sex marriages, although other states, including Maine, Oregon, Washington, New Jersey, Connecticut and Vermont, as well as Washington, D.C., do recognize civil unions or domestic partnerships between same-sex couples that provide some, but not all, of the same benefits as marriage.

That's where the power of attorney comes in. It allows you choose another person to make important legal and financial decisions on your behalf should you be unable to do so yourself. So if anything happens to you, you know who that person will be. Otherwise, the court selects someone, starting with the closest relatives.

"Some same-sex couples are estranged from their biological families or have lukewarm relationship with them," says Harvey. "Often the last thing they want is for their family members to be given control over these decisions."

It's also important for same-sex couples to draw up separate power of attorney papers for health care decisions. Like the power of attorney governing legal and financial decisions, this lets you appoint someone to make health care decisions if you become incapacitated. It also covers things such as hospital visitation rights, as family members are usually the only ones allowed to visit patients -- unmarried partners are often excluded.

Harvey says same-sex couples also have to consider the tax implications of commingling their assets. That's because, unlike married couples, same-sex couples are considered "legal strangers" in that they are not exempt from laws that make gifts to anyone exceeding $12,000 this year and $1 million over a lifetime taxable.

"This is more of a challenge when you have a same-sex couple where one makes significantly more money than the other," says Harvey. For example, if one member of the couple is the main breadwinner and pays the mortgage, car payments and other bills, and those bills end up exceeding $12,000, then that person will be subject to gift-tax penalties.

"This is an area where people do not realize there is a problem," says Harvey. "They think they are just paying for this person's expense. But as far as the IRS is concerned, there is a problem."

If same-sex couples have strained relationships with their biological families, they may also want to protect against the possibility that a family member will contest their will. That's where a revocable trust comes in handy.

According to Rainbow Law, the centerpiece of any estate plan for same-sex couples should be a living

revocable trust. A

trust is simply a contract between the person who creates the trust (the grantor) and the person who will manage the trust assets (the

trustee). A revocable trust is a trust that can be changed and altered, as opposed to an

irrevocable trust, which cannot.

While many people assume trusts are often only for the rich, you can have one set up for as little as $250. It works like an empty storage container that you fill with any asset you want passed down to whomever you choose. This is something many people mistakenly believe is covered by a will.

Unlike a will, anything you have in a trust will stay out of the

probate process, Harvey says. That means your affairs stay out of the public courts and records. More importantly, it's much more difficult to contest a trust than to contest a will.

"When people don't have good relationships with their family, a revocable trust can give them the peace of mind that their assets will be distributed according to their wishes," says Harvey.

Another important estate-planning tool for same-sex couples is a

living will. This is a legal document that describes the medical treatment you would want if you become incapacitated.

"I think every person, not just same-sex couples, should have a living will," says Ross-Stone of Rainbow Law. "The government seems hellbent on interfering in our relationships. That's why it's important to make these decisions while you're healthy."

Michael Katz joined

TheStreet.com

in 2007. Michael has previously worked as a reporter at

Forbes

and an editor for two custom publishers, SmartMoney Custom Solutions and HNW Inc. He also worked in London as a freelance media reporter and correspondent for

Broadcasting & Cable

magazine. Michael has a B.A. in English from the University of Virginia.