ESTATE PLANNING SERVICES FOR SAME-SEX COUPLES

Prepared by:
LAW OFFICE OF WILLIAM J. BRISK
1340 Centre Street, Suite 205
Newton Center, MA 02459
(617) 244-4373
© 2009

INTRODUCTION: Creating a long-term care and estate plan can be an overwhelming

undertaking for anyone, but same-sex couples face unique and ongoing challenges. Especially
in Massachusetts, where married same-sex couples enjoy the full rights and responsibilities of
marriage, the distinction between state and federal laws can serve as confusing, frustrating, and
in many cases devastating road block to the free exercise of choice in estate planning.

“The question before us is whether, consistent with

the Massachusetts Constitution, the Commonwealth
may deny the protections, benefits, and obligations
conferred by civil marriage to two individuals of the
same sex who wish to marry. We conclude that it
may not.” Goodridge v. Dept. of Public Health 798
N.E.2d 941 (Mass. 2003)
“In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United
States, the word ‘marriage’ means only a legal union
between one man and one woman as husband and wife,
and the word ‘spouse’ refers only to a person of the
opposite sex who is a husband or a wife.” 1 U.S.C. §7(3).

State rights enjoyed by Massachusetts Federal rights denied to same-sex

couples include …
Access to health insurance for a same-sex spouse
through a spouse's workplace;
Hospital visitation rights and the right for a same-
sex spouse to make medical decisions for a spouse
if he/she is incapacitated;
The ability to file joint tax returns in Massachusetts;
The ability to transfer property between spouses
without being penalized by state gift taxes;
Ability to file for joint home/auto insurance policies;
The right to determine how and where a spouse is
buried, in the event of his/her death;
Automatic inheritance of shared assets;
Access to work leave benefits, such as sick time to
care for an ailing spouse or non-biological child.
couples include …
 Social Security survivor benefits —
resulting in an average annual income loss of
$5,528 upon the death of a same-sex spouse.
 The ability to use the “Married Filing
Jointly” status for federal income tax purposes
that can save families money;
 Disability, dependency or death benefits
for the spouses of veterans and public safety
officers;
 Estate protections that allow a spouse to
leave assets to the other spouse – including the
family home – without incurring any taxes
 Health insurance. A same-sex spouse who
receives coverage for his/her spouse must pay
federal income tax on the value of the insurance.

A well-constructed estate plan, however, can assure same-sex couples that their interests can
be preserved at both the state and Federal level. While many new couples put off the creation of
Wills, Trusts, Durable Powers of Attorney, and Health Care Proxies until illness and/or advanced-
age make the need for such documents imminent, same-sex couples need to consider the
documentation surrounding their relationship as soon as possible in order to combat
discrimination, legal challenges, and prejudice. On the next page you will find an explanation of
the specific ways that our office can assist you in developing your estate plan and all relevant
documents.

ELDER LAW ● E S T A T E P L A N N I NG ● LITIGATION ● MEDICAID ● PROBATE

1340 Centre Street, Suite 205, Newton Center, MA 02459 ● Phone: 617.244.4373 ● Fax: 617.630.1990
www.briskelderlaw.com
Wills
Since Massachusetts provides for equal access to marriage, a same-sex spouse is entitled to the same
treatment as an opposite-sex spouse when an individual dies without a Will. This process, known as
intestate succession, allows the surviving spouse of an individual who dies without a Will to inherit from
the decedent’s estate. This is also true in other states with similar civil union, or domestic partnership
statutes. Here are some reasons, however, that it is important for same-sex couples to execute Wills:
 Same-sex couples are more likely to face challenges from estranged family members who
would otherwise be entitled to inherit through intestate succession.
 Same-sex couples should include explicit language detailing their relationship to each
other and their children in their Will in order to survive future legal challenges.
 A Will may need to specifically designate the non-biological children of a same-sex spouse
as entitled to inherit since they may not be related by blood or adoption.
 A Will can nominate a same-sex spouse as the guardian of children, who may otherwise
face challenges since he/she may not be related by blood or adoption.
 Wills can create trusts for assets of a same-sex spouse that may otherwise be taxable.
Trusts
Even if same-sex couples execute valid Wills, probating the estate of a deceased spouse can have
severe tax penalties for the surviving spouse. Transfers of property to a spouse are fully deductible for
both Federal estate and Federal gift tax purposes, but this exemption does not apply to same-sex
couples. Even if property is held jointly, the IRS includes the entire value of the property in the estate of
the first owner to die unless the surviving owner can provide evidence of contribution to the acquisition of
the property; this issue does not exist for married opposite-sex couples. Trusts may provide a workable
mechanism to protect assets that would otherwise be taxable upon transfer or death.
 Trusts can be more difficult for others to contest and help to keep the decedent’s
wishes private because they do not go to probate.
 Irrevocable Trusts preclude creditors from attaching assets because the grantor
relinquishes authority of administration and enforcement.
 An Irrevocable Life Insurance Trust provides the opportunity to buy an insurance policy
but remove it from the taxable estate regardless of marital status.
 A Testamentary Trust can provide for support of a surviving spouse without damaging
eligibility for important government benefits.
 A Credit Shelter Trust can protect assets from estate taxes upon the death of both
spouses, maintaining assets for their children or others.
Powers of Attorney
Durable Powers of Attorney and Health Care Proxies are essential for same-sex couples. A Durable
Power of Attorney can be used to ensure that bank accounts, property, and other assets are properly
managed by a spouse or other designated agent should the other spouse become unable to do so.
Similarly, by using a Health Care Proxy, an individual can ensure that if he/she is unable to make
decisions about health care, a spouse or other designated representative will carry out his/her wishes.
 Given the somewhat politically hostile environment some couples may encounter,
these documents present a legally binding commitment that requires no marital bond.
 When married same-sex couples travel outside of Massachusetts, these
documents can help to ensure equal treatment under the law.
There are many other instances in which binding legal documents can help to reinforce the
commitment of marriage in a politically unstable world. From organ donation to adoption,
inheritance to guardianship, same-sex couples must make sure that their wishes are
documented and supported. The Law Office of William J. Brisk is committed to helping married
and unmarried same-sex couples maintain as much protection as possible for their interests,
now and in the future.
ELDER LAW ● E S T A T E P L A N N I NG ● LITIGATION ● MEDICAID ● PROBATE

1340 Centre Street, Suite 205, Newton Center, MA 02459 ● Phone: 617.244.4373 ● Fax: 617.630.1990
www.briskelderlaw.com