gay-pride-1009-1280x960Yesterday, one day before the anniversary of the Supreme Court’s DOMA ruling, we saw more steps toward marriage equality, with judges in both Indiana and Utah ruling in favor of same-sex marriage. A federal judge found Indiana’s ban on same-sex marriage to be unconstitutional, while a federal court of appeals in Utah upheld a previous ruling that the state’s ban on same-sex marriage was unconstitutional. While both of these rulings represent a continued trend toward marriage equality (all federal district courts have ruled the same way on the subject) and are cause to celebrate, Florida still does not recognize same-sex marriage. This stance makes it of particular importance for same-sex couples to prepare and create a comprehensive estate plan to make sure that their partners are taken care of and afforded all the possible rights under the law.

The estate of any resident who dies in the state without a last will and testament will be distributed according to Florida intestacy laws. While this is never the ideal way to distribute estate property, it is particularly troublesome for same-sex couples. Florida law says that the estate goes first to the surviving spouse. Since Florida does not recognize same-sex marriage, the estate would go to family members instead of your partner. Having a will can assure that your assets go to your partner as you say, rather than to who the state says.

A trust based estate plan is always a favorable option, given its control flexibility, creditor protection, and ability to avoid probate. Trusts may be even more important to same sex couples in that they are private documents and they do not have to go in front of a judge (given the state’s stance on same-sex issues, avoiding the court as much as possible is ideal.) Not only does a trust based estate plan assure that your partner receives his portion of your estate just as with a will, it gives you more control over who gets your assets than just the first disposition. With a trust, you can give everything to your partner, and then control where it goes after that. Sadly, we’ve seen cases where family has not been accepting of the relationship. With a trust, you can make sure that instead of your assets going to a relative you are not close with, it can go to close friends, other family, or even the charity of your choice. A trust will also make sure that the assets your beneficiaries receive are protected from creditors.

Another pressing issue for same-sex estate planning in Florida is guardianship. Since 2010, same-sex couples are now able to adopt children in Florida. All couples in the state with minor children should designate in their will or in a guardianship form filed with the state who the child’s guardian should be. Absent a guardian designation, the courts would determine who the child’s guardian will be. Don’t leave such an important decision up to anyone but you and your partner; make sure your estate plan names a guardian if you have a minor child.

Finally, you should be sure to designate a healthcare surrogate and power of attorney to make medical and financial decisions for you in the event of incapacitation. To assure that your medical surrogate can make the most informed decisions regarding your health, you should also sign a HIPAA release form that allows your partner (or whoever your surrogate is) to see your medical records.

As more and more states recognize same sex marriage, we hope that Florida soon follows suit. Until then, make sure that you have a proper estate plan in place from a firm that works with same-sex planning.

For more information on successful Florida estate planning and asset protection techniques, please contact the South Florida law firm of Wild Felice & Partners, P.A. at 954-944-2855 to schedule your free consultation.

It’s a Wild world. Are you protected?SM