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Update: Florida same sex marriage

1-6-2015 - The federal courts have directed the State of Florida to recognize same-sex marriage. Unless the U.S. Supreme Court says otherwise, same-sex married couples have the same rights and obligations as any married couples in this state. This development has enormous estate planning ramifications for same-sex spouses residing in this state, as well as for their parents and grandparents who face a new set of legal realities as they plan their own estates.

Among the rights and obligations Florida now affords same-sex married couples:

  • The right to a life estate in the spouse's homestead, or one-half ownership in the property.
  • Consideration as the natural health care proxy for the spouse, second only to a court-ordered guardian.
  • The right to hold assets as tenants by the entireties, which provides certain creditor protections.
  • If a same-sex spouse dies intestate, the survivor is entitled to 50% of the estate if there are children from the decedent's prior marriage, or 100% if the decedent has no children from a prior relationship.

Of course, federal protections have been available for same-sex married couples since 2013, when the Defense of Marriage Act was struck down, and include:

  • Federal estate tax breaks:  Unlimited marital deduction when one spouse passes his/her estate to the survivor. A surviving same-sex spouse may also use any unused portion of the deceased spouse's exemption (portability). The current unified estate tax and gift tax exemption is $5.43 million.
  • Social Security: Like their heterosexual counterparts, a surviving spouse in a legal same-sex union may opt to collect the decedent's Social Security benefits if those benefits are greater than what the survivor is currently receiving. Also, while both spouses are alive and collecting Social Security, the lesser-earning spouse can elect to receive 50% of the higher-earning spouse's benefit.
  • V.A. Benefits: All the benefits that heterosexual married couples have enjoyed are available to same-sex marrieds. For example, if the spouse is entitled to pension with aid and attendance, the survivor will also be entitled to those benefits, provided of course that he/she meets all other criteria. 
  • 401-ks: Under federal law, the spouse is the automatic beneficiary.
  • Individual Retirement Accounts: A deceased spouse's Individual Retirement Account can be rolled over into the survivor's account without being taxed, and the survivor may take minimum required distributions based on his/her own life expectancy, and then let the ultimate beneficiary stretch it out.
  • Medicare: All the spousal privileges and benefits that apply to opposite-sex married couples are available to same-sex marrieds. Spouses of Medicare recipients can enroll in the program even if they lack the requisite work history.
  • Income taxes: Same-sex married couples may file joint returns.

Please call upon our experienced Florida estate planning attorneys for assistance. We can assist you with making plans for both your life and death so that you, your assets and your spouse get the protections you desire.

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