There have been some extremely promising developments in gay marriage in the New England states, which many hope are a taste of things to come nationwide.  The highly independent state of Maine has approved gay marriage and, at the time of this writing, it looks like the Granite State of New Hampshire will follow.  In addition, the District of Columbia has also approved gay marriage.  There is certainly a lot to celebrate.

But what rights are brought with marriage in those states and in DC?  (Yes, leave it to the attorney to be the buzz-kill in the room.)  In each jurisdiction, there are some tax breaks that are open to spouses that are not open to others, and spouses are entitled to be first in line to make medical or financial decisions for each other.

While marriage equality is an important goal that needs to be embraced nationwide, domestic partners should not be fooled into thinking that once they have gay marriage the law will provide all of the rights and protections they want, exactly the way they want, and no partner protection planning is needed.  The way the media portrays things, everyone would assume that once a gay couple is married they automatically and magically have all of their plans enacted by law.  Nothing could be further from the truth.

The main rights conferred by marriage that are generally considered important to domestic partners are:

·          inheritance rights

·          healthcare decision priority

·          financial decision priority

·          tax breaks

State marriage laws only provide these rights partially and often not universally. 

Inheritance in these states and in DC does not provide full inheritance for a spouse unless all parents and descendants (children, grandchildren, etc.) are deceased.  Most people expect that a spouse is going to inherit 100% if their spouse passes on, and domestic partners want their partner to inherit, or at least have available, 100% of their assets if they pass on first.  But signing a marriage license does not accomplish this.  Each jurisdiction is different, but the one thing that is universal is the surviving spouse rarely gets everything under the law.

Healthcare decision priority is one right that is given 100% to the closest living relative, which is a spouse.  If a married gay person who is a resident of Maine, New Hampshire or DC becomes too ill to make their own medical decisions, then their spouse will make medical decisions for them… if they happen to be sick in Maine, New Hampshire, DC, or the other marriage equality states.  If they happen to fall ill on vacation in Florida or Nevada or any other state that does not recognize gay marriage, then their priority in making decisions will not be recognized.  The only way partners can protect each other in making medical decisions is to have a healthcare power of attorney.  (For more information, please download and read the complimentary e-book The Gay Marriage Alternative at www.gaymarriagealternative.com.)

Financial decision priority has probably devolved into the weakest of the rights conferred by marriage.  State laws regarding a person having priority in making financial decisions usually involve an expensive process that declares a person incompetent and unable to handle their own affairs, receiving permission from the court to act on their behalf, and then accounting to the court on a regular basis of how money was spent.  The days of people saying “I’m their spouse” and being given access to financial accounts is over.  Unless a person is declared the legal guardian over a person’s finances, they will not be given access to financial accounts under the law.  However, a financial power of attorney can give the spouse access without having to go through a court.  This one really is a no-brainer: you can execute a power of attorney document and have financial control in an emergency, or you can rely on state law for financial control and be the first person in line to take control of your spouse’s affairs after spending roughly $5,000 for an attorney to represent you in court and after declaring your spouse incompetent.

Finally, state law usually gives some tax benefits to a spouse that others do not get.  While they are definitely a benefit, the majority of taxes paid by individuals are federal and federal law prohibits the recognition of gay marriage.  One of the biggest tax breaks for married couples under federal law is called the unlimited marital deduction for gift and estate taxes.  Specifically, this allows spouses to transfer property between themselves without the gift tax and to pass their assets on to their spouse free of estate taxes.  For domestic partners, this would eliminate the gift tax when combining assets as joint with a right of survivorship… if the federal government recognized that right.  (For more information on gift taxes, please download the complimentary report at www.domesticpartnergifttaxes.com.)

While the advances in marriage equality in New England are welcome and should be celebrated, they cannot be used as an excuse not to put together written plans for same-sex partners/spouses.  The only way possible for partners to get the exact plans they wish is to have them prepared just for them.

Written by Jeffrey G.  Marsocci of The National Institute for Domestic Partner Estate Planning, LLC, copyright 2009.  For more information on life and estate planning for domestic partners, please contact Institute member Jeffrey G.  Marsocci, Esq. at 919-844-7993, or visit the Institute’s website at www.NIDPestateplanning.com.