In 2015 the United States Supreme Court issued its opinion in Obergefell v. Hodges, finding that same-sex married couples are entitled to equal protection under the laws, and that their marriages must be recognized in all fifty states – including South Dakota.
The Supreme Court’s ruling overrides South Dakota’s law that prohibited same-sex marriage and will undoubtedly have a major impact on estate planning opportunities for same-sex spouses in South Dakota. Here are seven estate planning “to do’s” for same-sex married couples in South Dakota:
1. Make a Will or Trust
Married couples should draft legally-enforceable wills or trusts.
A will is simply a document that states your final wishes.
A trust is an arrangement in which one person holds legal title to another person's property.
2. A Healthcare Power of Attorney
A healthcare power of attorney is a document in which you appoint another person to make healthcare decisions for you should you become incapable of making these decisions for yourself. It is important to remember that your healthcare power of attorney does not need to be a licensed lawyer - you can name your spouse.
3. Make a Financial Power of Attorney
A financial power of attorney is a document in which you appoint another person to make financial decisions for you should you become incapable of making them yourself. Once again, it is important to remember that your financial power of attorney does not need to be a licensed lawyer - you can name your spouse.
4. Gifting to Others
If a couple wants to leave money to a charity or religious institution, these wishes should be included in an estate plan.
5. Gifting to Spouse
Under most circumstances, you can make unlimited gifts to your spouse and do not have to pay taxes on these gifts.
6. Beneficiary Designations
Most retirement plans, annuities, and life insurance policies let you decide what becomes of your assets through the designation of beneficiaries. A common presumption is that signing a will takes care of these items. However, if there is a conflict, your beneficiary designations “trump” your will.
7. Business Transitions
If one or both spouses own a business, make sure that your estate plan provides for the orderly operation or transition of the business in case of incapacity or death.
Same-sex couples in South Dakota should always take control of their estate planning through careful planning and working with experienced professionals who can guide them through this increasingly complicated process.