If done in advance and with the right help from a legal representative, estate planning can be a rather simple process. But while this may be a fact for a majority of people across the state of Oklahoma, it may not necessarily be the case for same-sex couples. As residents here know, same-sex marriage is not recognized in our state, meaning they may not be allowed to follow many of the estate planning processes heterosexual couples enjoy.
Some people think that the recent DOMA decision made by the U.S. Supreme Court was supposed to fix that, but unfortunately that only applies to federal benefits and may not fall under state laws. We wanted to take a look this week at some of the challenges that same-sex couples could face when writing their estate plan and how these things should be discussed with an attorney down the road.
The first challenge is that of the division of an estate. In most cases, a spouse inherits an estate upon death. But in same-sex couples, if the marriage is not recognized, this may not be the case. Similar issues can arise with medical directives as well. A spouse who is normally able to make medical decisions for their partner in the event that they become incapacitated may not be able to if the marriage is not considered valid. This can create conflicts that have resulted in litigation in other states.
Other issues have also cropped up across the nation, including whether a partner’s name can be listed on the death certificate. This could significantly impact any end-of-life plans or estate planning documents that have not been scrutinized by a skilled attorney. In the end, it could mean that your afterlife wishes are not kept, leaving possible litigation in its wake.
While not everyone will be able to avoid some of these complex issues, talking to a lawyer during the process can at least smooth out some of the concerns you may have and give you advice on how to move forward with your end-of-life intentions if complications arise.
Source: The Chicago Tribune, "Fervent Battle Continues Over Same-Sex Marriage," Deborah L. Jacobs, Oct. 9, 2013