Same-Sex Spouses Shouldn’t Rely on Default Rules
Sometime between now and the end of its current term, the U.S. Supreme Court will make a ruling that could change everything for millions of same-sex married couples nationwide, as well as thousands of couples waiting hopefully in Georgia and other red states, because they will rule on whether the Constitution requires states to allow and acknowledge same-sex marriages.
When it comes to estate planning, however, it largely shouldn't matter. While many same-sex couples seem to be waiting for the ruling to make things easier and make an estate plan less necessary, the fact is, every couple, regardless of their gender makeup, should make sure their estate plan is something that can't be touched. That means no one should ever rely on default rules for their estate plan.
Oh, sure; the ruling takes away one major worry for some couples, but who is well served by allowing the court to make decisions about your estate instead of you.
Regardless of the Supreme Court's decision, same-sex couples should find an attorney to provide help that is both competent and sensitive,in order to avoid having the state decide what happens to your assets. Find someone with whom you feel comfortable and have chemistry. But most of all, make sure you trust each other.
Speaking of trust, you should consider one or more of them. Even if the Court ultimately decides the right way, same-sex couples may still be best served by setting up revocable living trusts and naming each other as successor trustees. What that means is, if one partner/spouse becomes disabled or dies, the other partner/spouse will be able to distribute the assets in the trust without having to go through probate. Such protection would be useful no matter what, since a probate judge who isn't pleased with the Supreme court's ruling could decide to ignore the ruling and appoint a blood relative to administer the estate. Worse, the judge could possibly decide to appoint a guardian, who could be a total stranger, to do so.
And yes, no judge should be able to do such a thing; everyone in the court system should defer to the Supreme Court if they decide the way we want, but this is Georgia; what do you plan to do about it if that happens. If you don't have a competent attorney and a specific plan, how would you fight that?
Like everything else about life, death and money, putting together a decent estate plan isn't cheap; it could cost a few thousand dollars or more. But if your estate ends up in prolonged probate, it could cost a lot more than that to grieving loved ones later. Don't just assume that the Supreme Court's decision will be the end of things; it may only be the beginning.