Even in states like Massachusetts, where same gender marriage and divorce is legal, working closely with an estate planning lawyer can ease some of the natural intricacies involved in marrying or dividing two lives. For same sex couples in other states, estate planning can be incredibly frustrating because of the amount of planning it requires, in addition to facing discrimination. The vast majority of states, as of 2010, did not acknowledge any rights of same sex partners unless proper estate planning is carried out. Since the same sex partner, in most states, is not considered a spouse he or she will not receive spousal benefits on any of a partner’s inheritance, including social security benefits and retirement plans. In most of these states the only way to properly intermingle your estates with your same sex partner is to specifically write the individual into your estate plan because most often the law will not recognize your partner without it.
A major concern for same sex couples “is avoiding courts on death,” said Janet Dobrovolny, founder of a California estate planning law firm. Dobrovolny favors a trust for passing on assets because conversely with a will everything becomes public during probate, and going through this process means notifying all potential heirs and giving them a chance to contest the will. With trusts, Dobrovolny says, almost everything can be 100 percent private and they are also much harder to contest then wills.
As far as pre marital and post marital agreements for same sex couples, special care by a lawyer is required to properly draft them. The law regarding same sex agreements is currently in a state of flux, and advice from an estate planning lawyer is strongly encouraged. Domestic partnership or co-habitation agreements may be preferable, and can be discussed with a matrimonial attorney, when the state that the couple resides in does not recognize same gender marriage, or in some cases divorce. These agreements can be drafted for same sex couples who reside together or intend to reside together in the future and are generally enforceable to protect the couples best interests pre and post marriage or union.