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.

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.

Adult adoption is when one adult adopts another adult. This typically happens with same-sex couples where one or both of the parties are beneficiaries to a sizable fortune or inheritance. Most trust and will documents will say that inheritances are kept in the family – to children and their spouses and their children. However, since most states do not allow for same-sex marriage, the only way around this is to make your partner, your child. This sounds very non-intuitive and unconventional – and it is.

Like the article points out, no one knows how successful this strategy of estate planning is. We do have several dozen cases from around the country that shows when it does not work. It does not work usually because the courts strikes down the adoption based on fraud and because there is no true parent-child relationship – especially because a parent/child sexual relationship is against public policy.

So at the end of the day, is this a common strategy of planning for same-sex couples? No. Does it affect most people or same-sex couples? No. It is only something that someone might think about if they had very wealthy relatives that were leaving them something in trust that they themselves could not control.

[Adult Adoption a High-Stakes Means to an Inheritance]