Same-sex marriage recently became legal in the state of New York. New York now joins Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and the District of Columbia as the U.S. jurisdictions which currently allow same-sex marriage. (California allowed same-sex marriage for a few months before the passage of Proposition 8, which ended it. California only recognizes those same-sex marriages performed in the state in that narrow window. Maryland recognizes same-sex marriages which were valid where formed.) The addition of New York doubles the population in the United States living in locales which recognize same-sex marriage.

What does this mean for estate planning for same-sex couples in New York? Does this mean that the estate plan for a married same-sex couple would be identical to that of a similarly situated traditional married couple? Unfortunately, until the federal government repeals the Defense of Marriage Act (“DOMA”) and all states recognize same-sex marriage, it does not.

As we know, state law impacts on many parts of estate planning, including intestate succession. However, if a client moves from one jurisdiction, like New York, to another jurisdiction, like Florida, their same-sex marriage would not be recognized in the new state. Thus, a “plan” by relying upon intestate succession would be in jeopardy if the spouses move. Thus, it is imperative that same-sex couples confirm their dispositive desires, even if it is the same as the default provisions under state law. So, while a traditional married couple might choose to rely on intestate succession, it would be unwise for a same-sex married couple to do so.

Further, federal law does not recognize same-sex marriages, even those validly performed under the laws where the couple lives. As a result, if one same-sex spouse gives his or her spouse money, it will not qualify for the federal marital deduction, in life or at death. For these and other reasons, it is best to continue to plan for same-sex couples with two separate trusts rather than a joint trust.

New York and other states have moved closer to allowing same-sex couples all the rights, privileges, and responsibilities available to traditional married couples. While this may be welcome news to same-sex couples in those states, it may make the estate planner’s job more difficult, keeping track of, and planning for, the disparate treatment of the couple under state and federal law.

Stephen C. Hartnett, J.D., LL.M
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd Ste 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com