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Same-sex couples still need power of attorney protections

A recent Supreme Court decision has answered the basic question of whether same-sex couples can legally marry. The landmark case is being celebrated by families in Oklahoma and across the nation, as many will receive a number of benefits that were previously unattainable. Many of these benefits fall within estate planning, an area in which gay couples have been at a disadvantage for many years. In certain areas, such as the need for power of attorney designations, gay couples are already properly protected. 

One of the biggest improvements for same-sex couples involves the portability of the estate tax exclusion. Currently set at $5.43 million per individual, married couples are able to combine their exclusions. When one spouse dies, the surviving partner is able to retain any unused portion of that exclusion and add it to their own. Now that same-sex marriage has been legitimized in the eyes of the law, those spouses will have the same access to portability as heterosexual spouses.

When it comes to incapacitation planning, same-sex spouses may also gain an advantage. In the event of a conflict concerning which party should have the right to make a loved one's medical and financial decisions after a serious illness or injury, the rights of a same-sex spouse will likely rank higher than that of a committed partner. That said, simply being acknowledged as a spouse is no guarantee of the right to make those essential decisions. The best level of protection remains a power of attorney designation.

Same-sex couples in Oklahoma should be aware of these and other estate planning options that are now made available to them. By understanding the changes brought about by the recent Supreme Court decision, couples are able to create a plan that works for their needs and intentions. Often, the need for a power of attorney designation has already been met and should remain in place. Meeting with an estate planning attorney can help clarify the available options and ensure that the proper documents are in place.  

Source: The National Law Review, "Estate Planning for Same-Sex Couples After Obergefell", Terri R. Stallard, Aug. 7, 2015

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