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Estate Planning for Same-Sex Couples in Illinois

 Posted on December 09, 2020 in Estate Planning Blog

Lombard estate planning attorneyThe 2015 landmark ruling by the U.S. Supreme Court in Obergefell v. Hodges was a game-changer of epic proportions. All couples—regardless of gender or sexual orientation—were given the right to marry in all 50 states. As such, they were afforded the very same rights as all married couples, including tax breaks and exemptions, ownership equality, and legal mechanisms that ensure survivorship and guardianship rights.

But, more than five years later, many couples are still facing legal challenges. Some are the same challenges experienced by all married couples. Others are completely unique to LGBTQ relationships. Regardless, couples should plan accordingly with an estate plan that reflects their needs and wishes in the event of an unexpected health complication or death.

Rights Under the Marriage Equality Law

Just like all other married couples, same-sex couples may file their taxes jointly, receive the same tax exemptions, have access to survivorship benefits under all pensions, insurance, and retirement benefits, give tax-free gifts to one another, and have spousal priority and identity in the event of their partner’s incapacitation or death. These provisions are guaranteed at both the state and federal levels and cannot, under any circumstances outside of divorce, be revoked by any government agency.

Continued Challenges

While marriage equality promises the same rights to same-sex couples that are available to opposite-sex couples, there are still challenges that could arise in the event of the death or incapacitation of a partner. For example, in the absence of a will, a surviving spouse will still need to go through the expense and delay of probate. Without an estate plan, there is also the distinct possibility of arguments between a surviving spouse and family members who have refused to accept the marriage, despite what the law says.

Planning for the Future

Just as all couples should consider estate planning for the future, same-sex and LBGTQ couples should take proactive measures to ensure their wishes are carried out and their needs are met in the event of death or incapacitation. A comprehensive estate plan may include:

  • Naming a durable power of attorney in the event of incapacitation

  • Distributing property among family members, including a spouse, children, and any extended family or charities

  • Establishing necessary trusts and appointing trustees

  • Assigning guardianship responsibilities related to the couple’s children

Need Help Creating Your Estate Plan? Contact DuPage County Wills and Trusts Lawyer

While some couples attempt to do estate planning on their own, a working and experienced understanding of the current tax and estate laws is necessary to ensure the best possible results. Contact a knowledgeable Lombard estate planning attorney to discuss your situation today. We understand the challenges that same-sex couples often face, and we understand how to overcome them. Call 630-426-0196 for a confidential consultation.



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