Introduction
Estate planning for same-sex couples requires the same basic documents every household needs, but there are distinct practical and interpersonal risks to address. Since Obergefell v. Hodges (2015) legalized same‑sex marriage nationwide, married couples generally receive the same federal spousal benefits and tax treatment as different‑sex married couples (Obergefell v. Hodges, 2015). Still, differences in state rules, intestacy laws, family dynamics, and how assets are titled mean same‑sex couples—especially those who are unmarried—must be deliberate about planning. In my 15 years of estate‑planning practice I’ve seen clear cases where simple documents prevented family disputes and preserved financial security.
Why this matters now
- Marital status matters: Married same‑sex spouses have broad default rights, but unmarried partners do not. If you are not married, the state’s intestacy rules usually do not prioritize your partner, so you must document your wishes. (U.S. Department of Justice and Obergefell case law)
- Asset titling and beneficiary designations override wills: A named beneficiary on a retirement account or life insurance policy typically receives those proceeds directly—so check and update designations after life events (CFPB, consumerfinance.gov).
- Health crises and incapacity: Without durable powers of attorney and healthcare proxies, a partner may be blocked from medical decisions or financial access.
Core documents every couple should consider
- Will: Names who receives probate assets and can nominate guardians for minor children. A will does not avoid probate by itself but is the baseline legal statement of intent.
- Revocable living trust: Helps avoid probate on trust‑owned assets, lets you plan for incapacity, and can add privacy. See our guide on Revocable vs Irrevocable Trusts for pros and cons: https://finhelp.io/glossary/revocable-vs-irrevocable-trusts-pros-and-cons/.
- Durable power of attorney (financial): Authorizes your partner to manage bills, bank accounts, and transactions if you are incapacitated.
- Healthcare proxy / medical power of attorney + living will: Names who makes medical decisions and states your preferences for life‑sustaining care; add a HIPAA release so providers can share information with your partner.
- Beneficiary designations and pay‑on‑death titling: Confirm that retirement accounts, life insurance, and payable‑on‑death bank accounts name the intended partner and contingent beneficiaries.
- Guardianship designation: For couples with children, nominate primary and backup guardians, and coordinate with estate funding for the children’s care.
Titling, beneficiary designations, and community property
How you hold assets matters. Joint tenancy with right of survivorship typically passes to the surviving owner automatically; trust ownership passes by the trust terms; individual accounts pass by will or beneficiary designation. Married couples should also be aware of community property rules in some states—property acquired during marriage may be owned equally—which affects estate calculations and spousal rights.
Trusts: when and why
Trusts are powerful tools for controlling timing and conditions of distribution, protecting minor children or beneficiaries with special needs, and avoiding probate. For same‑sex couples with blended families or children from prior relationships, a trust lets you provide for your partner while protecting children’s inheritances. For more detail on trust mechanics and funding, see our trust resources: https://finhelp.io/glossary/trust-funding-how-to-move-assets-into-a-trust-correctly/ and https://finhelp.io/glossary/revocable-vs-irrevocable-trusts-pros-and-cons/.
Special considerations for parents and blended families
- Legal parentage: Birth certificates and adoption documents determine legal parentage. If only one partner is a biological parent, consider second‑parent adoption or a parental consent/guardianship agreement where permitted.
- Guardianship and trust funding: Name guardians in your will and fund trusts to pay for children’s care. Be explicit about contingent guardians.
Tax and benefit issues
- Federal estate tax: Married couples can use portability of a deceased spouse’s unused exclusion, but portability requires an estate tax return (Form 706) in the year of death to elect it—speak to an estate tax advisor or attorney before assuming portability will apply (IRS, irs.gov).
- Filing status and Social Security: Marriage affects survivor benefits and spousal Social Security eligibility; consult SSA guidelines for specific eligibility rules.
Medical decision‑making and privacy
Healthcare proxies, HIPAA authorizations, and clear medical directives prevent hospitals from defaulting to blood relatives. A signed HIPAA release and durable healthcare proxy should be carried in electronic form and with your primary care provider.
Practical drafting tips and language
- Use explicit relationship and identity language: Identify your partner by name and relationship (e.g., “my spouse, [Full Name]”) and include date of birth to reduce ambiguity.
- Alternate and contingent beneficiaries: Name primary and contingent beneficiaries for every asset.
- Specific powers in POAs: Tailor powers for tax filings, business management, and retirement account management.
- Witness and notarization rules: Follow your state’s execution rules—many states require two witnesses and notarization for wills.
Common mistakes I see
- Relying on verbal promises or outdated documents: Survivors encounter delays and disputes when documents are unsigned, unstated, or not updated after major events.
- Forgetting to update beneficiary forms after marriage or divorce: Retirement accounts and life insurance pass by designation, not by will.
- Not funding a trust properly: Moving property into the trust is essential—an unfunded trust does not avoid probate.
A typical step‑by‑step checklist
- Inventory assets and note how each is titled.
- Confirm beneficiaries on insurance and retirement accounts.
- Execute a will that names an executor and guardians (if applicable).
- Create durable power of attorney and healthcare proxy with HIPAA authorization.
- Consider a revocable living trust if you want to avoid probate or manage assets privately.
- Fund any trusts and retitle assets as needed.
- Appoint successor fiduciaries and check for conflicts of interest.
- Store originals securely and give copies to trusted parties or your attorney.
- Review the plan every 3–5 years or after major life events.
Selecting fiduciaries
Choosing the right executor, trustee, agent under a power of attorney, or guardian is critical. Select someone organized, available, and who understands your values. If you prefer professional management, a corporate fiduciary or trusted attorney can act as trustee. Read our guide on selecting fiduciaries for more practical advice: https://finhelp.io/glossary/selecting-the-right-fiduciaries-trustees-agents-and-executors/.
Costs and when to hire help
Costs vary widely by geography and complexity. Basic wills and powers of attorney can be inexpensive, while trusts and tax planning cost more. For blended families, high‑asset estates, or businesses, retain an estate planning attorney and tax advisor. Do‑it‑yourself forms can be useful for simple needs but have limits—an attorney ensures state compliance and helps reduce later litigation risk.
Dealing with family conflict and out‑of‑state issues
After a death, relatives may challenge documents, especially in families unfamiliar with or opposed to same‑sex relationships. Clear, up‑to‑date documents, conversations with family, and funding arrangements reduce the risk of successful challenges. If you travel or own property in other states, check how those states treat trusts, probate, and marriage to avoid surprises.
Where to find authoritative help
- IRS (estate tax, gift tax, and filing rules): irs.gov.
- Consumer Financial Protection Bureau (consumer guides on estate planning basics): consumerfinance.gov.
- State bar associations and local estate planning attorneys for jurisdictional rules.
Professional disclaimer
This article is educational and does not constitute legal or tax advice. Estate‑planning rules vary by state and individual circumstances. Consult a qualified estate planning attorney and tax advisor to create or update documents tailored to your situation.
Closing note from the author
In my practice, the most effective plans combine straightforward documents with clear communication. For same‑sex couples—married or unmarried—taking these steps removes uncertainty, reduces the risk of family conflict, and ensures that your partner and children are protected the way you intend.
