There are ways to get around some issues, but not all.

All same-sex committed couples should execute a will, durable power of attorney and a health care proxy.  This is true for all couples but for same sex couples, there are no default laws in some cases to protect them – opposite couples have those protections built into the law.

Having a will, durable power of attorney and a health care proxy, would’ve helped the following situation.  It wouldn’t heal the emotional scars but it would’ve allowed the surviving partner to care for Tom, to bury him, and to share in their life together without being afraid of Tom’s family.

The Federal Estate Tax for this year applies only to those individuals with assets worth over $5 Million and is taxed at a 35% rate.  The Massachusetts Estate Tax applies to individuals with assets worth over $1 Million and the tax rate varies.  If a person is subject to both the Federal and State tax, then their marginal estate tax rate could be 45% or more.  However, for most individuals who have assets between $1M and $5M, then the tax rate hovers anywhere from 0% to 20%.

For a more comprehensive calculation, see the Department of Revenue site calculations.

Also, you may want to discuss property that you are leaving to your children in order to prevent any arguments.  Making sure everyone knows what is going on and what their responsibilities are will help everything run smoothly and without any problems.  It also allows for everyone to voice their opinions and concerns.

Usually people leave the majority of their assets to their surviving spouse. Therefore, you will want to change this if your spouse has passed away and give it to your other loved ones.  If you do not do this then your assets could end up in the hands of someone else.  You could also leave something to charity if you do not have anyone you wish to leave something to.  Other reasons you may want to update your will are if you have a new baby, a new home, or additional income.

President Obama directed the Justice Department to stop defending DOMA in court but the Justice Department will continue to enforce it.  This is a very confusing concept.  How can you stop defending something but still enforce it?  Well, it has a lot to do with the difference between defending something as Constitutional in court vs. the law being the law of the land.  DOMA is a law that is still law so therefore, individual states still have a right to not recognize same-sex marriage if it chooses not to.

For now, the same laws still apply to same-sex couples.  If you travel outside of Massachusetts to a state that does not recognize same-sex marriages, your marriage will be void.  As such, it is especially important that when you leave the state to travel, you and your partner must have the essential estate planning documents in place just in case something happens.

• Will.  Each person must have a will – even if you’re married.  A will allows for you to dictate where your possessions go after you die.  For couples that are not married, this is especially important if you want your partner to have all or part of your possessions.  Otherwise, they have no legal right to anything.
• Durable Power of Attorney.  This instrument allows for someone else to make financial decisions on your behalf.  This comes into play if you were ever to become incapacitated, such as in a coma, and your partner needs to take care of your finances.  Another common situation is if a partner needs to sign over or sell a piece of property so that they can afford your health care.  They cannot do so without your signature and without a power of attorney, they cannot sign your name for you.
• Health Care Proxy.  This instrument is similar to a power of attorney – the difference being that this document allows for someone to make medical decisions on your behalf.  This is one of the most important documents for a gay or lesbian couple because if you are not married or travel to a state that does not recognize same-sex marriages or civil unions, then your partner has no right to speak on your behalf to your doctor if you cannot speak for yourself.  Your partner also has no right to know of your medical condition.
• Health Care Directive (Living Will).  This document is not legally binding in Massachusetts, however, most estate planning lawyers will suggest it.  That is because it is a set of instructions for your Health Care Proxy to follow.  It not only gives them a set of rules, it also gives them permission to do certain actions that they might feel uncomfortable doing if not for your explicit, pre-planned permission.

Estate planning for same-sex couples is especially important because not all states treat same-sex marriages and civil unions the same.  There is definite discrepanices in state laws that means that your marriage might not be recognized once you cross state lines and as such, your rights as a married couple is void unless you have certain documents in place.

Speak with an experienced estate planning lawyer in your area that can speak to you about your specific situation and who has experience with same-sex estate planning issues.

Practically, it is much better to appoint someone to be your executor that is close by so that they can take care of your affairs for you when you need them.  Someone who lives far away will have a harder time managing the responsibility that goes along with being an executor.

If you have filled out a Do Not Resuscitate order and someone is able to show proof of this order to the ambulatory service or the hospital, then they will follow the wishes of the executor of the form and not use measures that will further your life if you are in critical condition.

Why would someone want this?  Many people who are in hospice care, end of life care, or who are terminally ill will choose to do this in order to not prolong the inevitable.  It is a choice that is personal to each individual person and you should speak with your family and loved ones about your choice so they understand it when the time comes.