Ten Estate Planning Tips For South Dakota Same-Sex Spouses

 

The United States Supreme Court's decision in Obergefell v. Hodges has paved the way for same-sex marriage in all fifty states - including South Dakota. The Supreme Court's decision will undoubtedly have a major impact on estate planning opportunities for same-sex spouses in South Dakota. Here are ten estate planning tips for same-sex couples.

1.  Healthcare decisions 

Previously, because South Dakota did not recognize same-sex marriage, one spouse could be left out of the other incapacitated spouse's healthcare decisions. Now, a same-sex spouse's decision will have priority under these circumstances. The spouse will also have a say if guardianship or conservatorship proceedings become necessary.

2.  Federal and State Benefits  

Since 2013, same-sex spouses have received survivorship rights for federal benefits and programs (like Social Security). After Obergefell, spouses now gain access to survivorship rights at the state level, like state pensions or other state retirement benefits.

3.  Intestacy 

If a spouse dies without a legal will or trust (also known as "intestacy") a same-sex spouse will now have certain spousal inheritance rights. 

4.  Will/Trust Contests

If a will or trust is contested after a spouse's death, the same-sex partner will now have a say in the court proceedings.

5.  Federal Taxes 

From a tax perspective, same-sex couples now have the ability to file their federal taxes jointly as a married couple.

Now that you know some of the Obergefell decision's estate planning implications, you should take the time to memorialize your wishes in enforceable legal documents.

6.  Will or Trust

Same-sex 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. 

7.  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.     

8.  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. 

9.  Gifting 

If a couple wants to leave money to a charity or religious institution, these wishes should be included in an estate plan.

10. 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.

Scott Swier
Founding Member, Attorney At Law