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SAME SEX ESTATE PLANNING IN ROCHESTER NY

Our firm has a history of supporting LGBTQ clients and their families. We have adapted our approach as society and our laws have changed. Today, the issues surrounding LGBTQ families are less about treatment by the IRS or employer’s benefits and more about cultural competency and recognition of unique personal issues.

In particular, the laws surrounding healthcare, children, parenthood, and particularly prior relationships are still developing, especially as couples decide whether to marry or remain committed partners.

The growing demographic of older LGBTQ adults has presented its own unique challenges. We have developed our elder law practice to recognize these issues and provide meaningful advice in a post-Obergefell world.



SAME SEX ESTATE PLANNING FAQ

Does marriage, domestic partnership or civil union provide all the benefits of marriage?
Domestic partnership and civil unions do not replicate the 1,400+ benefits provided to married couples.

I’m married, why do I need to plan?
If you do not have a plan, your assets do not automatically pass entirely to your spouse upon death. Your spouse is not empowered to access your finances if you are disabled, and if you have not appointed a health care agent, family members can challenge your spouse in medical decision making through costly and time consuming litigation.

Can my spouse or partner handle my financial affairs if I am incapacitated?
Unless your spouse is a joint owner, they do not have legal authority to manage your financial affairs unless you complete the necessary legal planning in advance, such as a Power of Attorney.

Can my spouse or partner make medical decisions for me if I’m sick?
Your spouse enjoys a presumption over family members, but if you have not appointed your spouse as a health care agent under a valid legal document, disputes can lead to litigation. Your partner has no priorty to make health care decisions on your behalf without proper legal planning.

How can I be sure that I will be allowed to visit my spouse or partner in the hospital or assisted living facility?
Execute health care proxies naming each other as primary agent, under the supervision of an elder law attorney.

Can I make decisions about my spouse or partner’s remains?
Absent execution of a disposition of remains document, remains become tangible personal property upon death, subject to control by the Executor or Administrator of the estate.

Will my spouse or partner be appointed guardian of my minor child?
If your spouse or partner is not the biological parent, they are not automatically the guardian. The Courts will apply a “best interests” analysis which can be subject to costly and time-consuming litigation.

Is there a tax if I give some of my property to my spouse or partner?
Transfer between spouses are generally tax exempt. Transfers between partners are considered transactions between strangers and potentially subject to gift tax implications.

Are my estate planning documents a matter of public record?
Only if you make them.

Do unmarried couples have to plan more than married couples do?
If an unmarried couple wishes to enjoy similar benefits, they should engage in substantial legal planning to replicate those benefits.

Is a Living Trust a good idea for a LGBTQ person?
A living trust is a good idea for someone with complex assets, assets in another state, someone desiring privacy, or someone with a less-than-ideal family situation. It can be an excellent tool for an unmarried LGBTQ couple.

In estate planning can the same person be appointed guardian of the children as the executor?
Yes.

How does asset ownership affect estate planning for same sex or unmarried couples?
Jointly owned assets pass automatically. Individually owned assets pass under beneficiary designations or under the Will or Trust. Failure to have a plan will often result in substantial cost and complexity following death.

Can I use the same attorney to do my estate planning as my boyfriend?
Yes, although the attorney should open separate files and may ask for each of you to sign a conflict waiver along with permission to share information between the two of you.

Do the estate and gift tax apply to same-sex couples?
Regardless of gender, transfer between spouses are generally tax exempt. Transfers between partners are considered transactions between strangers and potentially subject to gift tax implications.
We have been very satisfied with everything from you and your office!

- Bob M.

RICHARD A. KROLL
ATTORNEY

Richard A. Kroll, Esq. has an active practice in the area of Estate Planning, Trusts, and Probate. He is a member of the...

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CAROLYN A. REARDON
ATTORNEY

Private practice in Rochester, New York with the Kroll Law Firm since 2007, a group practice in Brighton, New York with emphasis on...

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MARCUS W. KROLL
ATTORNEY

Marcus's practice involves estate planning for all families, including LGBT couples, second marriages, and families who have members with...

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Richard A. Kroll
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