BY RONALD A. FATOULLAH, Esq.
and YAN LIAN KUANG-MAOGA, Esq.
It has been estimated that there are three million elderly LGBT (lesbian, gay, bisexual, and transgender) adults in the United States. Planning ahead for issues that may arise as we age is recommended for everyone. It is absolutely essential for elders with a same-sex partner, because of the unique challenges they face arising from unequal treatment under the law.
Under federal law, married same-sex couples are not treated equally and are not afforded the same benefits as married heterosexual couples. This is because the Defense of Marriage Act (DOMA) precludes the recognition of same-sex marriages under federal law, even if the marriage is valid where entered into. Hence, a surviving spouse of a same-sex marriage is not eligible for Social Security spousal, survivor, or death benefits.
In New York State, same-sex couples are not able to enter into a valid marriage. However, current state law provides that if an out-of-state marriage is valid where entered into, it will be honored in New York. An exception to this rule is where the marriage “expressly runs afoul of state law or is repugnant to public policy.” One New York State appeals court has recently ruled that same-sex marriages do not fall within either of the two exceptions and in the absence of law specifically prohibiting recognition of such marriages, they are honored. This treatment may be changed if our legislature acts on it.
Given the current state of federal and New York state law, married and unmarried same-sex elderly couples are urged to plan ahead. Some of the issues to be considered are: gaining access to long-term care benefits, making critical decisions regarding health, life, and death of a partner, and whether you and your partner will be able to inherit from each other.
With regard to inheritance after death, partners are strongly recommended to prepare individual trusts and wills, even if the ultimate plan is set up to avoid probate. The goal is to avoid the law of intestacy, which distributes the assets of the deceased’s estate according to state law if he or she dies without a will. Although, under the current New York State intestacy law, a spouse of a valid same-sex marriage is recognized as a “surviving spouse” and entitled to inherit accordingly.
A trust and will can secure the right to inherit if the law changes. Additionally, a will that properly documents your intent and wishes to provide for your partner can be a deterrent to family members who may consider challenging the inheritance received by your partner. Will contests involving the estates of same-sex partners occur at a much higher rate than the population as a whole. A will and trust will evidence your intent as to whom you want to name as beneficiaries of your estate.
Until the federal and state laws change to treat married same-sex couples the same as married heterosexual couples, it is imperative that planning be effectuated to protect same-sex partners. It is important to seek legal advice in order for same sex couples to properly plan for their future together.
Ronald Fatoullah is a leading expert in the field of elder law. He is the founder and managing attorney of Ronald Fatoullah & Associates, a law firm concentrating in elder law, Medicaid eligibility, estate planning, special needs, trusts, guardianships, & probate. He is certified as an elder law attorney by the National Elder Law Foundation, and he is the current Legal Committee Chair of the Long Island Alzheimer’s Association. The firm’s offices are conveniently located in: Long Island, Queens, Manhattan & Brooklyn and can be reached at: 1-877-Elder Law 1-877-Estates.
This article was written with the assistance of Yan Lian Kuang-Maoga, Esq.
