Estate Planning for Same-Sex Couples

The American Bar Association's GP Solo e-zine has an article on estate planning for same-sex partners. I want to point out only two issues I have with this article:

• Funeral arrangements is an area fraught with problems for same-sex couples. Many states limit the right to make these arrangements to the decedent’s immediate family. Others, such as Ohio, have enacted legislation removing that restriction and allowing every person to name someone to make these decisions. For same-sex couples, these laws permit each partner to name the other as the person authorized to carry out the arrangements.

Indiana is one of those states which allows only family members to make funeral arrangements. However, that obstacle can be overcome in two ways.

The first method requires the person involved to set up a funeral trust. The article does not mention this rather simple device. Each person would go to a funeral home, decide what type of funeral they want, and pay for it through a pre-needs trust. The trust can be funded through the purchase of an insurance policy. (Actually, I recommend to this all my clients. It does solve the problem of the family deciding the funeral arrangements at the time of death.)

Secondly, get a power of attorney. The power of attorney statute gives to the attorney-in-fact (the person to whom is given the power of attorney) the power to make funeral arrangements, and the disposition of the body. This article does a fair job of describing the myriad powers given to the attorney-in-fact via a power of attorney.

I would also point out that along with funeral arrangements, one needs to include the burial location. That will mean buying funeral plots and specifying those burial plots as the person's final destination.

Solo also has an article on taxes and same-sex couples. It is also worth reading. I would add that under Indiana's inheritance tax no exemption is available for unmarried couples. The need for planning cannot be understated in these circumstances.