Estate planning issues for same-sex couples in Florida

April 27, 2013

Estate planning issues for same-sex couples in Florida

Article provided by Barreto & Romero, P.A.
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In the tumultuous legal and political landscape surrounding the ongoing same-sex marriage debate, Florida's LGBT couples still face a number of estate planning obstacles not shared by their heterosexual counterparts. While not everyone is comfortable discussing or even contemplating the prospect of growing old and dying, it is especially important for same-sex partners to address these issues head on in order to protect the long-term interests of their loved ones and themselves.

Create a will and keep it updated

Creating a will is one of the most important estate planning steps that anyone can take to make sure that their assets are distributed according to their wishes after death. For gay and lesbian couples, this is even more critical because Florida's intestacy laws do not recognize inheritance rights for same-sex partners.

When a person dies without a will in Florida, his or her assets are distributed to the surviving spouse and other family members according to a set formula. Because same-sex partners are not recognized as married couples for estate law purposes in Florida, it is easy for GLBT individuals to be unintentionally disinherited when a partner dies without a will.

Review your account beneficiaries

A will can be used to designate where many of your assets will go after you die, such as your home, bank accounts and personal belongings. However, there are certain other assets that pass independently of your will. To make sure that your loved ones are provided for after your death, it is important to make sure that these assets are properly accounted for in your estate plan.

Assets like retirement plans and life insurance policies, which have beneficiary designations, are known in legal terms as "non-probate assets," which means that their distribution after death is not dictated by the terms of a will. Instead, these assets will go to whoever is named as the beneficiary on a particular account. People in same-sex partnerships should make sure to review the beneficiary designations on these accounts to make sure they are up to date.

Create a health care advance directive

Opposite-sex spouses in Florida automatically have the right to make important health care decisions for one another if either partner becomes incapacitated, but the same is not true for gay and lesbian couples. Creating an advance health care directive allows people in same-sex relationships to communicate their wishes for end-of-life medical care and make sure that those wishes are carried out.

There are two main types of advance health care directives in Florida: Living wills and health care surrogate designations. A living will is a set of written instructions that details the types of medical care that you do or do not wish to receive in the event that you can no longer communicate your wishes. A health care surrogate designation names another individual and authorizes him or her to make medical decisions on your behalf if you are unable to make them yourself. To provide maximum assurance that their wishes will be carried out, many people choose to use both types of advance directives together.

Seek legal advice

For a more thorough discussion of these and other estate planning issues affecting same-sex couples in Florida, contact an attorney with experiencing catering to the unique needs of LGBT clients.