Updated: Wed, 06/26/2013 - 00:01

Estate planning essential for LGBT couples

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Mike Smith, co-founder of Savannah-based Smith Barid LLC
Mike Smith, co-founder of Savannah-based Smith Barid LLC
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Estate planning is a good idea for all couples, but for couples in the Lesbian Gay Bisexual or Transgender (LGBT) community, it is essential.

Without proper planning, the surviving partner could be left without an inheritance, a home or even the right to bury his beloved.

The state of Georgia does not confer the rights of marriage to same-sex couples even if they are legally married in other states or countries. But it will recognize contractual agreements, which offer many of the same protections.

A will is a good place to start, but it does not guarantee a partner’s protection, especially if the deceased’s family did not approve of the union. A will is a public document, available to anyone to read.

Because Georgia does not recognize same-sex marriages, family members can contest the will of an LGBT couple and have it overturned leaving the partner with nothing.

An alternative is to set up a living trust and transfer all assets envisioned for the partner into that trust. The partner then becomes the trustee in the event of incapacity or death. A trust is private, requiring no court intervention and it’s much harder to overturn than a will.

While Georgia does not recognize same-sex marriage, it does afford LGBT couples several other ways to document and legitimize their relationships. One is a domestic partnership agreement, which explains the contractual legal rights and responsibilities of each partner and clarifies ownership and division of property in the event of a break up or the death of your partner.

If a LGBT couple wants to make sure the surviving partner inherits their home, they should make sure that the warranty deed lists both partners as joint tenants with right of survivorship.

Without this specific language Georgia courts will presume that the partners were tenants in common, meaning the deceased’s share of the property would pass to a legal heir, such as a spouse, child or other biological relative.

It is also important for LGBT couples to name their partners as beneficiaries for IRAs, 401(k)s, life insurance policies and any other investment, savings or retirement accounts if they want them to inherit these funds.

The IRS does not recognize same-sex partners as married; so non-spouse inheritance rules apply for IRA or 401(k) accounts. Under these rules a non-spouse must begin withdrawing required minimum distributions starting the year after her partner’s death.

In addition, LGBT couples should think about setting up living wills, durable powers of attorney and writing a final arrangements document to ease the burden on their same-sex partners of handling their final arrangements.

A living will, also known as a health care directive, designates which life prolonging treatments you approve, if any, should you become incapacitated from a terminal illness or permanent vegetative state.

Durable powers of attorney can give your partner the right to make health or financial decisions for you if you are unable to speak for yourself. A final arrangements document, while not legally binding, can be helpful if your partner’s burial wishes differ from his family’s tradition.

Finally, LGBT couples with children need to consider what might happen if the natural or legal parent dies. The non-natural parent may be named guardian in the will, but again, wills can be overturned. If the non-natural parent is also named the trustee of the child’s trust, the trust can specify how often the trustee “meets” with the children, which at least ensures visitation.

Because of the complex and ever-changing nature of this area of the law, LGBT couples should seek legal advice in reference to their estate planning needs. Every couple is unique and each needs a plan tailored to fit their specific situation.

Michael Smith and Richard Barid are co-founders of Savannah-based Smith Barid LLC, which specializes in elder law, estate planning and special needs planning. They can be reached at 912-352-3999 or richard@smithbarid.com or msmith@smithbarid.com.

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