Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Same-Sex Couples Still Need to Review Legal Concerns

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Same-Sex Couples Still Need to Review Legal Concerns

Article excerpt

Comprehensive estate planning is challenging. In creating a plan, we must review multiple issues such as federal and state taxes, family dynamics, health concerns, business interests and ultimately the goals of the client.

Estate planning for same-sex couples has additional factors to consider. Usually, these factors were concentrated on issues affected by the government's non- recognition of the marriage such as taxes and federal benefits. Much of that has changed now as a result of the following court decisions.

Pennsylvania has permitted same-sex marriage since the Whitewood v. Wolf decision issued on May 20, 2014. At the federal level, the U.S. Supreme Court decided Obergefell v. Hodges on June 26, 2015, which requires all states to permit same-sex marriages as well as recognize those validly performed in other jurisdictions.

On the surface, the initial legal barriers to same-sex marriage are now gone. However, consider some new issues that either present new planning issues or will need further clarification by legislation or court action.

1. Custody: The doctrine of presumption of paternity requires courts to presume that children born during a marriage are the children of the parties to the marriage. Arguably, this doctrine, as well as similar types of doctrines, should apply equally to same- sex marriages and parents as they apply to opposite-sex parents and marriages.

Since it may take the courts some time to figure this out, same- sex couples planning to have children during the marriage should consider formally going through the adoption process.

2. Defining length of marriage: Whether calculating federal benefits or determining equitable distribution and alimony in divorce, determining the length of the marriage for people who were "committed" to each other for many years but were only recently allowed to become legally married will be a challenge.

For example, Social Security requires a 10-year marriage to collect on the other spouse's earnings record. …

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