Marriage for gay couples has been legal in Colorado for some time. With the recent Supreme Court decision making same-sex marriage legal across the land, what does that mean for estate planning for same-sex couples? Now, like any other couple, couples in the LGBT community should incorporate planning for the future into the beginning of their married lives together.
Changes in Personal and Property Rights with Same-Sex Marriage
One right long denied to gay and lesbian is the ability to be recognized as a preferred medical decision-maker for a partner. Individuals who have lived with a partner for years, even decades, have been denied the ability to make choices for the person they know and love best. Instead, the decision-making power went to a parent, adult child or sibling of the patient. If that person disapproved of the same-sex relationship, there was nothing to stop him or her from utterly excluding the longtime partner from the patient’s bedside and from care decisions.
With the legalization of same-sex marriage in Colorado, if one spouse becomes disabled or incapacitated, the other spouse will be recognized as the preferred medical decision-maker, just as with married heterosexual couples. Likewise, if one spouse in a same-sex marriage dies without a valid estate plan, Colorado intestacylaws would consider a same-gendered spouse in the same light as a spouse of the opposite sex for purposes of inheritance, descent and distribution.
This is a significant change from previous law, in which a same-sex partner had no legal standing to inherit. However, the fact that a legal right has been created doesn’t mean it will be automatically enforced. A family member who disapproves of the same-sex marriage of a deceased relative may challenge in court the spouse’s right to inherit property. Even if the spouse prevails, such disputes are expensive and unpleasant. For this reason, it is always preferable to have a valid, enforceable estate plan in place.
If a same-sex married couple has children, estate planning is even more essential. Because the child of such a couple will not have biological ties to both parents, the possibility exists that the child’s other biological parent, or the deceased spouse’s family could try to gain guardianship, potentially removing the child from the surviving parent and devastating both parent and child. It’s critical, therefore, to plan for the child’s guardianship in the event one parent dies or is incapacitated.
Experienced Estate Planning for the Needs of Colorado Same-Sex Couples
For gay couples, the ability to build a family and plan for its future is both a hard-won victory and an awesome responsibility. An experienced Colorado estate planning attorney can help you make sure you’re covering all bases when planning for the security of your new family.
Contact the experienced estate planning and probate attorneys at Davis Schilken at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. Our attorneys can address your concerns, identify your goals, and explore your options for protecting all the people you love. We will prepare an estate plan customized for your needs, so you can enjoy your life together with peace of mind.