Estate Planning Complications Faced by Gay and Lesbian Couples
Over half a million same-sex couples in the United States, a dramatically under-counted yet rapidly growing segment of the population, needlessly face an uphill battle in estate planning. Because marriage and its resultant benefits are generally unavailable to same-sex couples, those individuals must rely on extensive and creative legal planning to reap inheritance and tax benefits that are automatically afforded to traditional married couples.
Whether a gay or lesbian individual dies testate, with a valid will, or intestate, without a valid will, the root of the problem stems from outdated intestacy statutes, which fail to recognize the close family bond between same-sex partners. To avoid the harsh consequences of intestacy law, an increasing number of same-sex couples are utilizing adult adoption of one’s partner as a means to secure inheritance rights. However, adult adoption is a risky solution to inheritance issues as it is fraught with many of its own problems.
Several recent developments in Maryland set the stage to explore the issue of inheritance rights for same-sex couples. In 2007, the Court of Appeals of Maryland upheld the constitutionality of the legislative ban on gay marriage. Just one year later, Maryland enacted domestic-partner legislation to provide limited benefits regarding hospital visitation and medical care decisions to registered domestic partners. Finally, in 2009, the legislature expanded domestic-partner legislation into the inheritance realm by allowing an inheritance tax exemption for jointly owned residences.