By Joseph E. Balmer   |   October 31st, 2015

Statutory Protections In Estate Planning Now Available To Surviving Spouses Of Same-Sex Marriages

estate planning same-sexNow that the institution of marriage has been sanctioned for same-sex couples, estate planning options and benefits that have not been available before can now be utilized to protect and provide for spouses in same-sex marriages.

Surviving spouses have always been provided certain statutory rights to a deceased spouse’s estate so that they are not completely disinherited.  A surviving spouse is entitled to a “family allowance,” usually the first $40,000 of the deceased spouse’s estate.  The surviving spouse is also entitled to the first two automobiles of the deceased spouse, unless specifically bequeathed to someone else.  The surviving spouse may live in the marital residence rent-free for one year.  The surviving spouse has the option to purchase the marital residence.  The surviving spouse can elect to take against the will.  These are just some of the statutory protections now available to surviving spouses of same-sex marriages.

Although Ohio no longer has an estate tax, the federal estate (or inheritance) tax exists.  Surviving spouses have always been able to utilize the federal estate tax credit of a predeceased spouse, either through a Marital Credit-Shelter Trust, use of a QTIP (Qualified Terminal Interest Provision) Trust or “portability” of the deceased spouse’s credit, basically doubling the federal estate tax credit of roughly $5.4 Million Dollars that every individual’s estate is entitled to use.  Surviving spouses also have paid no estate tax on what they inherit due to an unlimited “marital deduction” on what they receive.  Also, lifetime gifts to spouse are exempt from any gift tax, saving both potential gift tax liability and the reduction of the donor’s federal estate tax exemption.

Surviving spouses also have certain priorities when it comes to decision-making rights of a deceased individual when it comes to funeral or burial decisions.  They are now considered next-of-kin of the deceased.  These protections were never available before for the same-sex couples.

Same-sex couples also now can avail themselves of the social security benefits granted to spouses and surviving spouses, allowing them to benefit from the social security contributions of a deceased spouse, and providing greater financial security in retirement for same-sex surviving spouses.

Also, same-sex surviving spouses can utilize special surviving spouse IRAs only available to a surviving spouse when named as beneficiary of an IRA.  The surviving spouse can roll over the deceased spouse’s IRA into one in the surviving spouse’s own name, and take distributions as if the surviving spouse had created the IRA, thereby not having to necessarily begin taking distribution immediately and being able to take distributions over the surviving spouse’s life expectancy.

Finally, same-sex married couples can now choose to file joint tax returns if it provides favorable tax treatment, as opposed to filing individually.

Greater Financial Security Available For Same-Sex Couples – Meet With An Estate Planning Attorney And Financial Advisor To Discuss These Issues

These are some, but not all of the estate planning, tax and retirement benefits that have long been available to married couples, but not same-sex couples.  With same-sex marriage now sanctioned in all 50 states, these sometimes critical benefits are available so that the surviving spouse of same-sex marriage can live with greater financial security.  Same-sex couples who have not already planned or availed themselves of these opportunities should meet with their estate planning attorney and financial advisor to discuss these matters in greater detail.

You might also want to read an article I wrote on this topic which was posted on The Ohio Family Law Blog on July 11, 2015, Estate Planning: Same Sex Relationship Estate Planning

Attorney Joseph E. Balmer is a partner at the Dayton Ohio law firm of Holzfaster, Cecil, McKnight & Mues, LPA and has been handling estate planning and elder law matters since 1991. He has been certified since 2006 by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law. Joe’s email is

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Joseph E. BalmerAbout The Author: Joseph E. Balmer
Joseph Balmer manages the Probate, Trust and Estate Administration department at Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has been certified by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law since 2006.

Estate Planning Tips for Same-Sex Couples
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