Regardless of what your family or domestic union looks like, estate planning is a critical step toward protecting not only your assets, but also your medical autonomy. Since the United States Supreme Court ruling in 2015 legally recognized same-sex marriages, estate planning rights such as federal tax benefits, spousal elective share protections, and automatic inheritance have been largely standardized across all 50 states.
However, some estate planning strategies are still dependent on state-level variations that can affect protections from challenges from larger institutions like banks and hospitals. Below are some key estate planning considerations for same-sex couples to keep in mind in Colorado and how they compare to the broader national landscape.
Colorado: A Same-Sex Union Friendly State
Colorado has a reputation for historically being proactive toward the rights of same-sex couples, having recognized civil unions since 2013, two years before the Supreme Court ruling. Colorado law recognizes civil unions as having the same rights as traditional marriages. In addition, Colorado allows couples to hold property as “tenants by the entirety,” which includes the right of survivorship and thus bypasses the probate process.
Beyond State Lines: Be Proactive to Avoid Friction
Even though Colorado has robust laws protecting civil unions, some states and localities can still prove tricky when it comes to larger institutions and more practical applications of estate planning. While some states and local jurisdictions offer domestic partnerships, civil unions, or other equivalent methods of legal recognition for same-sex couples, the rights and responsibilities of domestic partnerships or civil unions can vary substantially from jurisdiction to jurisdiction. Thus, it’s important to safeguard the following:
Medical Rights: Even if you are married, medical Powers of Attorney and Health Insurance Portability and Accountability Act (HIPPAA) Authorizations are the only guarantee that your spouse or partner can advocate for you in a medical situation without the need to prove your marital status.
Parenting Rights: If you have children, proof of your marriage alone may not be enough to establish parental rights. Non-biological or non-adoptive parents can still face custody challenges. Formal adoption or other legal recognition are the only true ways to secure your parentage rights.
Privacy Rights: Trusts are the surest way to maintain your privacy, as they do not enter into the public record during probate, unlike a will. If you have concerns about asset distribution scrutiny by estranged family members who may attempt to contest your estate, establishing a trust provides your partner and beneficiaries with the strongest privacy protection.
Key Strategies for All Couples
Regardless of the type of union you’re in or where you reside, the following steps can further cement your estate plan from outside challenges.
Update Pre-2015 Documents: If your estate plan dates back before the Supreme Court ruling, there may be outdated language or assumptions that are no longer accurate.
Review your Beneficiaries: Double-check your retirement accounts, life insurance policies, and any account that is “payable upon death” to verify your beneficiaries still align with your current will and/or trust. These designations typically override what’s in your will.
Add Anti-Contest Provisions: An attorney can include specific language in your documents that can discourage family members from challenging your estate. While not an iron-clad guarantee, this tactic is another layer in a strong protective armor.
Regularly Audit your Documents: If you hold property in more than one state or are a frequent traveler, make sure your healthcare and financial directives are easily accessible, portable and strong enough to stand up in jurisdictions that may be less accepting of same-sex unions.
Work with a Knowledgeable Attorney: An estate planning attorney who is familiar with LGBTQ+ specific legal needs will ensure your documents use the correct protective language (such as identifying your partner by name rather than “spouse”) to prevent derailment by avoidable administrative errors or nit-picky legal technicalities.