And the above list is just the tip of the iceberg.  By most accounts, there are over 1,100 federal statutory provisions in which marital status is a factor in determining or receiving benefits, rights and privileges. 

It must be remembered that DOMA is a federal law.  States are free to recognize or prohibit same-sex marriage, or enact laws somewhere in between. 

Currently, over half of the states in the United States constitutionally prohibit same-sex marriage by defining marriage as a union between a man and a woman.  In 2004, Missouri amended its constitution to provide that "to be valid and recognized in [Missouri], a marriage shall exist only between a man and a woman."  Additionally, a little over a dozen states have statutory bans against same-sex marriages.

Other states, although fewer in number, recognize same-sex marriages.  The following six states and/or jurisdictions allow marriages between persons of the same sex: 

• Connecticut;
• Iowa;
• Massachusetts;
• New Hampshire;
• Vermont; and
• The District of Columbia. 

 Additionally, some states recognize "civil unions" for same-sex relationships, considering it the "equivalent" of marriage. Other states have domestic partnership laws which grant same-sex relationships some of the benefits granted to married couples.

Because federal and state law is often varied, it is critical for a same-sex couple to understand the law of their state and plan in advance.  For example, if a same-sex couple gets married in Iowa, but resides in Missouri, Missouri will not recognize the marriage.  This means that if the couple were to separate, a Missouri court may not hear the divorce.  Further if one spouse were to die without having any estate planning documents in place, the surviving same-sex spouse will not be eligible to inherit assets by way of the Missouri intestacy laws, unlike the surviving spouse of an opposite-sex marriage.

What Estate Planning for Same-Sex Couples Involves

When most people think about traditional estate planning, they think about how they want to leave their property at death.  This certainly is one aspect of estate planning, but it is not the only aspect.  This is especially true for same-sex couples.

Estate planning for same-sex couples should focus on life and death planning.  A properly structured estate plan for a same-sex couple should bridge the gap which arises because current law does not recognize or gives fewer rights to same-sex couples and their marriage or relationship.  To fill in these deficiencies, planning for a same-sex couple may involve some or all of the following areas, depending on the needs, goals and objectives of the individuals:

• Traditional estate planning;
• Healthcare and disability planning;
• Relationship planning;
• Family planning; and
• Tax planning.

Each of these topics will be discussed in more detail below.

The Benefits, Advantages and Challenges of Planning for Same-Sex Couples

Same-sex couples can obtain many benefits through proper planning.  Peace of mind is the biggest benefit that can be achieved by same-sex couples engaging in life and estate planning.  Knowing that contingencies have been accounted for and legal issues have been addressed lifts a huge burden off one's shoulders. 

Without proper planning, a same-sex partner can be economically, financially, emotionally and personally erased from their partner's life in the event of a partner's death or disability.

A properly structured life and estate plan can ease the burden on grieving loved ones who will know what you wanted and can follow your wishes and instructions. 

In addition, a properly structured life and estate plan can save money.  Such a plan can create estate efficiency, eliminate potential disputes, and reduce or eliminate probate fees, taxes and other costs.  Reducing costs and expenses means more money is left for loved ones.  

Estate planning for same-sex couples may also present some challenges.  Tough questions may need to be asked and answered.  Not only do same-sex couples need to think about what will happen if they die or become disabled, they also need to evaluate their relationship in terms of what other family members think.  Has the same-sex couple come "out" to their family?  If so, is the family (or some family members) hostile (or potentially hostile) to the relationship?  Since the goal of an estate plan is to provide a level of certainty, the answers to these types of questions are essential to provide adequate protection for same-sex couples.

Basic Estate Planning Tools, Documents and Strategies for Same-Sex Couples

     1.  Traditional Estate Planning Tools, Documents and Strategies.  Traditional estate planning is the process of arranging a person's affairs through asset ownership and documentation to accomplish that person's goals and objectives related to the management and disposition of his or her estate during life and at death. 
 

          a.  Consequences of Not Having a Traditional Estate Plan.  In the absence of a traditional estate plan, state law will determine how property is distributed at death.  For a same-sex couple dying without an estate plan, this could lead to unintended and often tragic results.  In most states (including Missouri), a same-sex partner will not be a beneficiary if there is no estate plan.  This means property may end up being distributed to "traditional" or blood family members to the complete exclusion of a same-sex surviving partner. 

If minor children are involved, a court will decide who will take over the upbringing of those children.  A non-biological "parent" of his or her deceased partner's children will in all likelihood be excluded.

In short, without proactive planning, the state will make decisions for a same-sex couple.  These decisions could be inconsistent with, or even contrary to, a same-sex couple's wishes, goals and objectives and can have unintended tax consequences.

          b.  Estate Planning Goals and Objectives.  The starting point for engaging in traditional estate planning is to determine your goals and objectives.  Goals and objectives tend to fall into two broad categories - non-tax or family goals and tax or economic goals.

               i.  Non-Tax or Family Goals.  Non-tax or family goals are personal in nature and differ from family to family.  These goals include:

• Providing for the appointment of guardians for minor children;
• Providing for care in the event of disability;
• Ensuring that assets are transferred at death to intended beneficiaries;
• Protecting assets from mismanagement and claims of creditors; and
• Discouraging or encouraging certain types of conduct.

               ii.  Tax or Economic Goals.  Tax or economic goals save costs, expenses and time.  These goals include:

• Reduction or elimination of income, estate and gift taxes;
• Rduction or elimination of probate fees and expenses; and
• Reduction or elimination of administrative delays.         

           c.  General Tools and Documents to Accomplish Goals.   A will, revocable living trust ("living trust") and durable power of attorney for financial purposes can fulfill many estate planning goals and generally make up the foundation of most estate plans. 

               i.  Last Will and Testament.  A "Last Will and Testament" is used to direct the disposition of property at death.  It is also used to designate a guardian for minor children.

Although a will can ensure that property passes to intended beneficiaries, in most states, a will requires probate proceedings to be effective.  Probate is the process of gathering a person's assets at death, making sure debts are paid, and ultimately re-titling assets in the name of the intended beneficiaries.  Probate can be a lengthy and expensive process and is something to avoid if possible.  For more information on probate, please contact us and ask for a pdf copy of our brochure titled "Understanding the Basics of the Probate Process."

               ii.  Living Trust.  The primary estate planning tool for most people (especially those with larger estates) is a living trust.  A living trust can work in place of a will to provide for the management and disposition of an estate both during life and after death. A living trust also avoids probate.

A living trust is a document that has three parties associated with it: a grantor, trustee(s) and beneficiary(ies).  The person who sets up the living trust is called the grantor.  The grantor is the person who determines what the living trust says and is also the person who transfers his or her assets to the living trust.  These assets will be managed by a trustee.  Typically, the grantor is also the trustee of the living trust (during life) so there is no loss of control over the assets transferred to the living trust. The assets in the living trust are used for the sole and exclusive benefit of the grantor (as beneficiary).  By structuring an estate plan with a living trust, a person provides for disability protection because the assets in the trust can be continually managed by a successor trustee (which the grantor appoints) in the event the grantor becomes disabled.

After the grantor's death, the living trust spells out how the property in the trust is to be distributed.  This property will avoid probate because the assets are titled in the name of the living trust (and not in the deceased's name).  

For more information on Revocable Living Trusts, please contact us for a pdf copy of our brochure titled "Understanding the Basics of Revocable Living Trusts."

              iii.  Durable Power of Attorney for Financial Matters.  A durable power of attorney appoints another person to make financial decisions for you in the event of a disability.  The powers granted typically include the ability to sign tax returns, change beneficiary designations, handle bookkeeping matters, etc.  The person you choose could be your partner or someone else you trust. 

     2.  Healthcare Tools and Documents.  Healthcare documents are essential for same-sex couples.  Without these documents, medical providers will look to blood relatives for healthcare guidance or court action may be necessary. 

          a.  Living Will and Advanced Directive.  A "Living Will" is a legal document that expresses your wishes regarding medical treatment if you are in a persistent vegetative state or death is otherwise eminent.  A living will gives medical professionals and advocates information about life-sustaining procedures like forms of resuscitation, breathing and feeding tubes, and pain management.

An "Advanced Directive" is similar to a Living Will, but it can also deal with your wishes regarding medical treatment even if you are not in a persistent vegetative state or death is not eminent.  In this sense, an Advanced Directive is broader than a Living Will because it lays out a more detailed blueprint for medical treatment.

         b.  Durable Power of Attorney for Healthcare.  A "Durable Power of Attorney for Healthcare" is a document where you appoint another person to make healthcare decisions for you in the event you are unable to make those decisions yourself.  The person you select should follow your Living Will or Advanced Directive and is your advocate if you cannot communicate your medical wishes yourself.

        c.  Hospital Visitation Directive. In April 2010, President Obama issued an executive order prohibiting hospitals from denying visitation privileges on the basis of sexual orientation, or gender identity.  This order will hopefully end the possibility of a same-sex partner being denied hospital visitation for his or her partner.  However, it is still important that same-sex couples complete a "hospital visitation form" because this form will specify your intent regarding welcomed visitors during a hospital stay.  The form should be completed in advance and as part of an overall estate plan.

      3.  Relationship Documents and Strategies.  No one wants to think about what will happen if a relationship ends.  However, a married opposite-sex couple has the ability to divorce and has access to divorce court.  For a same-sex couple that is not married, this is not the case.  Further, even if a same-sex couple is married, they might not be living in a state that recognizes the marriage, and therefore the state may not provide a legal forum to hear a divorce.

Same-sex couples can attempt to define their relationship by entering into a contract with each other.  Although this may not seem personal, it is a way to potentially create rights and obligations where traditional laws have failed or ignored same-sex couples.  These contracts are often referred to as "domestic partnership agreements."

A domestic partnership agreement is designed to document a same-sex couple's intent as to the nature of their relationship.  A domestic partnership agreement can define the partners' financial obligations to each other and their family.  It can clarify how assets will be disposed of on a partner's death or dissolution of the relationship.  Other topics which can be defined or addressed in a domestic partnership agreement include:

• Ownership and purchase of assets (including a residence);
• Property acquired by gift or inheritance;
• Payment method for bills and expenses;
• Procedure for dissolution of the relationship.

      4.  Family Documents and Strategies.  More and more same-sex couples are experiencing the joys of parenthood.  With parenthood comes added responsibility.  Same-sex couples must plan beyond just being a good parent and providing love and wisdom to their children.

A non-biological parent is often forced to argue that he or she has the authority to make important decisions about school and medical care for a child.  There is even a risk of losing the child if the legal parent dies and the relationship between the non-biological parent and the child has not been secured.

If a same-sex couple is parenting children together, but one of them is not a legal parent, they might want to consider second-parent adoption if their state law allows it.  This is not only important for purposes of making decisions affecting the child, but also to provide the child with access to health insurance and social security disability or survivor benefits, both of which depend on having a legal relationship with a parent. 

A second-parent adoption is a legal proceeding where a child with one legal parent is adopted by a second parent.  Typically there is an evaluation of the home and the family as part of the process in order for a judge to ensure the adoption is in the best interests of the child.

If state law does not allow second parent adoption, a same-sex couple can still provide for a certain level of protection through a co-parenting or shared custody agreement.  At a minimum, these agreements work to the extent the same-sex couple abides by them.  Although these agreements do not have the legal effect of a second-parent adoption, it may be enforceable, or at the very least, it will give important guidance to a court if a dispute arises.  Co-parenting or shared custody agreements generally contain provisions that:

• The non-biological parent has authority to agree to medical care for the child;
• Both parents have joint financial responsibility for the child; and
• The legal parent will name the non-biological parent as guardian in a will.

     5.  Tax and Property Ownership Considerations and Strategies.  Because same-sex couples are not granted full legal recognition under federal law, there are a variety of tax issues which they face.

          a.  Income Tax.  From an income tax perspective, same-sex couples need to be aware of numerous tax rules and considerations, including:

               i.  Federal Income Tax Returns.   Same-sex couples must file separate individual income tax returns (Form 1040) with a filing status as "single."  This is true even if the state in which they reside recognizes same-sex marriages and they file state returns with a "married" filing status.

                  ii.  Health Insurance.  Health insurance provided by employers to their employees and families is considered a non-taxable fringe benefit.  However, health insurance for an employee's same-sex partner is not exempt from income tax liability.  Employers who provide insurance for same-sex spouses of their employees must report the value of those benefits as taxable to their employees.

                 iii.  Income Taxes and Children.  There are many tax issues that relate to same-sex couples and children.  Some of these planning issues simply involve taking advantage of current tax law.  Issues which should be considered include:

• Claiming dependency exemptions;
• Claiming head of household status;
• Claiming adoption credit;
• Claiming child tax credit.

           b.  Estate and Gift Tax.

                 i.  General.  Transfer taxes come in many forms, two of which are the gift tax and the estate tax.  With the recent passage of the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, we have a little more certainty as to where the estate and gift tax law stands, but this certainty only lasts for two years (2011 and 2012) because after 2012, the estate and gift tax law will revert back to previous law which is significantly less favorable to taxpayers.  For more information on the estate and gift tax law, click on the following link for an archieved issue of e-Counsel which discusses the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010.

                 ii.  Gift Tax in General.  In general, the gift tax applies to transfers made during life.  A person (donor) can give assets with unlimited value to a spouse without incurring a gift tax.  This is because property gifted to a spouse qualifies for a marital deduction.  In addition, in 2011, gifts totaling up to $13,000 can be made to any number of individuals in each calendar year without incurring a gift tax.  Annual gifts of up to $13,000 which are not subject to gift tax are referred to as "annual exclusion gifts." 

Gifts which are not made to a spouse and which exceed the $13,000 annual exclusion gift amount are generally subject to gift tax.  However, every person is allowed to give away an additional $5,000,000 during life before actually having to pay a gift tax.   This is referred to as the lifetime applicable exclusion. After this amount has been gifted, the federal gift tax can be as high as 35% of the assets gifted.  You should note that the $5,000,000 lifetime exemption amount only applies for 2011 and 2012.  Without a change in the law, starting in 2013, this amount will be reduced to $1,000,000 and the highest gift tax rate will increase to 55%.

                iii.  Estate Tax in General.  The estate tax applies to transfers made upon death.  When a person (decedent) dies, the decedent's assets need to be inventoried and valued at fair market value.  Assets a decedent owns is broadly defined and generally includes real and personal property, cash, stocks, bonds, retirement assets, mutual funds and life insurance.  It generally does not matter whether such assets pass to another at death by way of operation of law (such as joint tenancy assets), by operation of contract (such as insurance proceeds), or by operation of probate laws or through a living trust.  There are deductions for debts, administrative expenses and transfers to spouses.  The net amount is the taxable estate and it is this amount that is subject to estate tax.  Because of an applicable exclusion available for estate tax purposes, the first $5,000,000 of assets (less any amount of the $5,000,000 gift tax applicable exclusion that was used during life) will not incur an estate tax.  Any assets in excess of this amount will generate an estate tax with the highest rate currently being 35%.  Once again the estate tax applicable exclusion of $5,000,000 is scheduled to be reduced to $1,000,000 beginning in 2013 unless the law is changed prior to that time.  In additon, beginning in 2013, the highest estate tax rate is scheduled to increase from 35% to 55%.

                 iv.  Same-Sex Couples and Gift and Estate Planning.  Same-sex couples have additional challenges when it comes to gift and estate tax planning (even if they have been legally married).  This is because under federal law and DOMA, the marriage is not recognized.  This means that property a same-sex couple gifts or leaves at death to the other partner will not qualify for the marital deduction. 

Same-sex couples need to plan carefully to avoid the tax consequences of inadvertent gifts to a same-sex partner.  This issue typically arises when one partner transfers property into both partners' names, or one partner contributes more financial resources to the relationship than the other.  When same-sex couples make joint household purchases or pay expenses and their financial contributions are not equal, a gift for federal gift tax purposes may have occurred, even if inadvertent.  This issue does not arise with opposite-sex married couples.

Because of the possibility of inadvertent gifts, same-sex couples should try to keep good financial records.  They may consider opening a joint checking account for household purchases.  If possible, each partner should contribute equally to the account and only use the account for joint expenses. 

When jointly purchasing real property, same-sex couples should also keep records of contributions made by each partner toward the purchase.  If only one partner is making payments, or there is no record of contributions, it is possible that half of each mortgage payment may be considered a gift to the non-contributing partner.  Further, if one partner owns real property and puts it into the name of both partners, a gift has also occurred.  The value of the gift is equal to one-half of the fair market value of the property.

Note however that the $13,000 annual gift tax exclusion applies to gifts made between same-sex couples, even those inadvertent gifts discussed above.  In addition, a same-sex partner can use their $5,000,000 applicable exclusion for gifts between partners so no gift tax should be payable until that threshold is met.  However, for same-sex couples where one or both have generated a significant amount of wealth, other planning options should be considered and it may not be wise or efficient tax planning to use the applicable exclusion for these types of lifetime transfers between partners, especially those of the inadvertent variety.

For more information on estate planning techniques for high net worth individuals, ask for our brochure titled "Advanced Estate Planning Techniques."  This brochure discusses, among other things, how to make full use of the applicable exclusion, how to make more effective gifts, use of life insurance trusts, qualified personal residence trusts, grantor retained annuity trusts, grantor retained interest trusts, sales to defective trusts, and family limited partnerships.

          c.  Property Ownership and Tax Considerations.   Other than by having a trust or creating a legal entity to own property, there are three general ways same-sex couples can own property together:

• As tenants by the entirety;
• As tenants in common; or
• As joint tenants with right of survivorship (JTWROS) 

Tenancy by the entirety is a form of property ownership where each tenant owns 100% of the property and has the right to possess the entire property.  Upon the death of the first tenant, the surviving tenant automatically becomes the sole owner irrespective of what might be said in any traditional estate planning documents.  Tenancy by the entirety is only available to couples who are married.  Therefore, a state must affirmatively allow same-sex couples to marry in order for them to take advantage of this form of property ownership.  In Missouri, tenancy by the entirety is therefore not available to same-sex couples.

A tenancy in common is a form of property ownership where each tenant owns an undivided one-half interest in the property.  Unlike tenancy by the entirety, upon the death of the first tenant, the surviving tenant does not automatically become the sole owner.  Rather, the deceased tenant can leave the property to whoever he or she desires through a properly executed estate plan.   If a deceased owner does not have an estate plan, the interest will be left in accordance with the state's intestacy laws (which may, but probably will not, leave the property in the manner the deceased owner desires).

JTWROS is a form of property ownership similar to tenancy by the entirety, except it is not between married individuals.  Therefore, same-sex couples can own property as JTWROS, but cannot own that same property as tenants by the entirety if their state does not allow same-sex marriages.  Property owned as JTWROS automatically passes to the surviving joint tenant when the first tenant dies irrespective of what might be said in any traditional estate planning documents.

If a same-sex couple desires to own property together, they must determine the most advantageous way to structure property ownership, which includes analyzing potential tax consequences.  And by property, we do not only mean real estate.   Same-sex couples may own assets together, such as bank accounts, investments, automobiles, and the like.  Same-sex couples who already own property together should review how that property is titled to ensure it is consistent with their life and estate planning goals and objectives. 

          d.  Retirement Plan Assets.  In almost all cases regarding retirement income and assets, same-sex spouses are considered "non-spouse" beneficiaries.  This can affect a couple's retirement plans in significant ways, including:

          i.  401(k) Plans.  Beginning January 1, 2010, non-spouse beneficiaries of 401(k) plans are able to roll a lump sum distribution into their own "inherited" IRA account.  Non-spousal beneficiaries will still have to start taking distributions immediately (unlike federally recognized spouses), but will no longer be subject to the high tax burden of taking the funds in a mandatory or immediate lump sum distribution.

          ii.  IRA Distribbutions.  A non-spousal beneficiary such as a same-sex partner may roll-over inherited IRA assets into his or her own "inherited" IRA account, thereby entitling the beneficiary to receive payments over his or her lifetime rather than having to take a lump-sum distribution. 

         iii.  Beneficiary Designations.  Retirement assets such as IRAs, 401(k) plans, 403(b) plans, and the like provide the owner the ability to select a beneficiary for the assets after death.  If the owner does not select a beneficiary, or the selected beneficiary dies before the owner, the assets will typically revert to the owner's estate (or be distributed to a close relative designated in the plan).  If the owner did not have a will and the assets revert to the owner's estate, state law will determine who receives the assets.  This will typically not be the same-sex partner.  Accordingly, same-sex couples should review their beneficiary designations for retirement assets as well as life insurance.

Conclusion

Before deciding which estate planning tools ought to be employed, a same-sex couple should consult an experienced estate planning attorney to analyze and discuss:

• The same-sex marriage laws, or lack thereof, in their state;
• The couple's personal goals and objectives
• The couple's financial goals and objectives

While a majority of states and the federal government do not provide rights or protections to same-sex couples in long-term committed relationships, this disparate treatment can often be overcome through proper planning, which can allow for structuring an overall life and estate plan for a same-sex couple that achieves their personal and financial goals and objectives.

CIRCULAR 230 DISCLOSURE

Under U.S. Treasury Department guidelines, we are required to inform you that (1) any tax advice contained in this communication is not intended or written to be used, and cannot be used by you, for the purpose of avoiding penalties that may be imposed on you by the Internal Revenue Service, or by any party to market or promote any transaction or matter addressed herein without the express and written consent of Helfrey, Neiers & Jones, P.C., (2) Helfrey, Neiers & Jones, P.C. imposes no limitation on any recipient of this tax advice on the disclosure of the tax treatment or tax strategies or tax structuring described herein, and (3) any fees otherwise payable to Helfrey, Neiers & Jones, P.C. in connection with this written tax advice are not refundable or contingent on your realization of federal tax benefits from the advice contained herein.