Factors for married same-sex couples to consider when drafting a will

Married same-sex couples who write wills ensure that their survivors do not have custody or financial issues due to unresolved business.

Since New York began recognizing same-sex marriages, many couples have been able to take advantage of the benefits of that relationship. If one spouse dies before the other, the legal rights and responsibilities of the surviving spouse are considerably different than they would be if the couple had not married. Estate taxes, probate costs and other matters provide LGBTQ couples with just as much incentive to draft wills as heterosexual couples.

Naming an executor

AARP notes that although a person may want to nominate the spouse as the person who administers the estate after his or her death, it may not be a responsibility best carried out by the grieving spouse. After all, in addition to watching over assets during probate, the executor may also need to take care of issues such as resolving debts and other financially stressful tasks.

Particularly if there is a large estate, a person may want to consider naming a professional trustee or an attorney to be the executor, or at least, to act as co-executor with the surviving spouse.

Planning for the children

According to the New York State Bar Association, when a spouse has biological children outside of the marriage that have not been adopted by the other parent, it could lead to custody issues. Ensuring the legal relationship of the non-biological parent to a child and including documentation to that effect in the estate plan may prevent custody and inheritance problems.

Frozen eggs, sperm and embryos may also need to be included in a will. According to the Center for Surrogate Parenting, the spouse would receive ownership of frozen embryos, which would include the right to use them or dispose of them. The surviving spouse may also inherit the financial responsibility of paying for storage if they remain frozen at the facility. There may also be legal issues to consider, such as whether a posthumous child would become an heir.

Power of attorney

The National Law Review points out that becoming incapacitated automatically puts a person at the mercy of other people for medical and financial decisions. Including a power of attorney and a health care directive in the estate plan make it more likely that a person’s wishes will be honored if he or she is not able to communicate. This may also prevent conflict if an estranged family member attempts to interfere during this type of stressful situation.

By seeking the advice of an estate planning attorney in New York City, a same-sex couple may be able to avoid disputes and other difficulties that may arise after the death of a spouse.