Asset Protection & Estate Planning for Same-Sex Couples
December 28th, 2011
Asset protection strategies and estate planning are essential for same-sex couples who want to leave an inheritance for each other or give their partner decision-making power over their healthcare. Ohio laws do not give rights to domestic partners when it comes to wills and healthcare decisions, regardless of their sexual orientation.
I recently had the opportunity to develop an estate plan for a same-sex couple and found several effective strategies for making sure each partner could receive inheritance and make healthcare decisions for the other just as if they were a married heterosexual couple. Actually, now they are probably better protected than most married heterosexual couples, because most couples don’t have an estate plan or living trust in place.
Asset Protection via Living Trusts, Irrevocable Trusts and LLC’s
Ohio laws give spouses and children priority over assets passed by will and no rights to same-sex partners. That means we had to develop an estate plan that will allow assets to pass from one partner to the other without a will and without going to probate court. We found significant advantages using trusts and LLC’s (limited liability companies) for asset protection and designating heirs.
Laws that apply to wills and probate proceedings do not apply to trusts. Trusts are legal entities that define their own rules for how assets owned by the trust are handled, including who receives control of the assets under specific circumstances, such as incapacitation or death of the trust creator. Through a combination of living trusts, irrevocable trusts and LLC’s, we were able to give each partner continued control of their assets during their lifetime and ensure that, upon death of one partner, the other partner would receive the intended inheritance.
Ensuring Partners’ Medical Decisions through Medical Directives
Just as with wills, Ohio laws favor children and parents when medical decisions need to be made on behalf of a person who is incapacitated. Domestic partners and same-sex partners have no authority to make medical decisions for an incapacitated partner unless specifically directed through legal documents.
The documents to have in place include:
- Healthcare or medical power of attorney
- HIPAA general authorization form
- Living will
A healthcare/medical power of attorney empowers partners to make medical decisions for each other if they are unable to do so themselves.
The HIPAA (Health Insurance Portability and Accountability Act) authorization will allow partners to get access to each other’s medical records. If one partner is injured in an accident and arrives at the hospital unconscious or otherwise mentally incapacitated, the other partner will not be able to get updates on his/her condition or speak with medical personnel unless a HIPAA authorization is on file.
A living will, which is also known as an Advance Healthcare Directive, allows a person the opportunity to dictate which medical procedures or treatments he/she wants or does not want if they are unable to tell the doctor themselves, such as whether to continue life support under certain circumstances.
Free estate planning and asset protection consultation available for same-sex couples. If you would like to know more about estate planning, asset protection, and medical directives for same-sex couples, please call our office to schedule a Free Consultation.
We’ll show you how living trusts, irrevocable trusts, LLC’s and other planning tools can be used to give you and your partner the same rights to asset protection, inheritance and healthcare decisions as other couples.
You can call us at 937-898-5583 or call toll-free at 877-483-6730.