Berman & Asbel, LLP

Estate planning for same-sex couples

Since the Supreme Court ruled in the Obergefell case, same-sex couples in Pennsylvania have had the right to get married and have their marriages recognized in any state. Now, same-sex spouses will be able to take advantage of the estate planning tools that were previously only available to heterosexual married couples.

Each individual estate is entitled to take an estate tax exemption of $5.43 million. This estate tax exemption can be doubled for a married couple, and the unused portion of one spouse's estate tax exemption can be transferred to the surviving spouse using an estate planning tool called portability. Now, same-sex married couples are also able to transfer property to each other after death without the need for probate.

Another right that same-sex spouses now have is the right to claim an intestate share of their deceased spouse's estate. After one spouse dies, the surviving spouse may choose to renounce the deceased spouse's will and claim their intestate share of the estate instead. This tool may be valuable for same-sex couples that neglected to update their estate plan after the Obergefell decision.

Because nationwide recognition of same-sex marriage is new, it's likely that there are many same-sex couples who need to update their estate plans. A lawyer may be able to assist a same-sex couple with the process of creating wills, health care directives and powers of attorney as part of a comprehensive estate plan. Some couples who have large estates may also want to consider setting up trusts in order to avoid estate taxes and probate fees.

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