NORTH BAY -- Options for long-term estate planning have broadened for same-sex couples after the U.S. Supreme Court's repeal of certain provisions of the Defense of Marriage Act, with potential implications for popular strategies that often hinged largely on life insurance policies, financial advisers and estate law attorneys said.
Before the rulings, which broadly redefined the terms "spouse" and "husband and wife" to include same-sex couples for federal tax purposes, life insurance policies were a key piece in the planning puzzle, often used as a way of transferring property to a partner without getting hit with hefty estate taxes. Life insurance policies were also often used to ensure steady income from Social Security benefits or pensions not available to same-sex couples.
Now, same-sex couples in California and in other states that have voted for or ruled in favor of same-sex marriages will not need to rely on the practice as much as they perhaps had in the past.
[caption id="attachment_79836" align="alignleft" width="180"] Naomi Metz[/caption]
"Now that we have the marriage deduction available, that may be less important," said Naomi Metz, an adjunct professor at the Empire College School of Law who runs her own law firm in Santa Rosa specializing in legal issues concerning lesbian, gay, bisexual and transgender individuals.
While the deduction and other planning tools are now more widely available for same-sex couples, there is still plenty of uncertainty and plenty of additional factors to weigh -- for all couples, regardless of orientation, Ms. Metz said, adding that the role of life insurance might not diminish but rather shift into a different role.
"It's really case specific," Ms. Metz said, adding that while such policies have often been used for transferring property, they may now serve as an attractive option for allows for cash flow for the recipient. "It may make sense to keep using life insurance. There may be other costs to be covered. Maybe less for purposes of paying the estate tax, but generally for covering costs of administration, or also to make sure the surviving spouse has access to cash."
Jason Glazier, an independent financial planner with Ameriprise Financial in Santa Rosa and an accredited domestic partnership adviser, agreed that the life insurance strategy should be looked at closely.
"I wouldn't say rethink, but I would say revisit," he said. "Now it takes a bit of a broader role in the estate planning."
For example, a couple in the past might have purchased a life insurance policy with a higher premium.
"Now that the law has changed, maybe [the premium payment] is too much. Maybe all of a sudden they could stop their contribution or lower their contribution," Mr. Glazier said. "There's a lot of possibilities now."
He added that life insurance policies, as they relate to estate planning, could go the same way that annuities have gone, in that when the need is lessened it's not too difficult to restructure.
Although options and clarity have emerged following the rulings, Ms. Metz said there are still important factors to consider for same-sex couples.
"The first and most important thing that we can do as estate planners is make sure we understand the legal status of what the couple is," she said. "The right to access federal benefits only applies to same-sex married couples. Those rights do not extend to domestic partners or civil unions. It's important for anyone working with same-sex couples to be very clear about whether the couple has been actually married, and whether that marriage is valid in the state it was performed."
When a marriage occurred and when a given couple became subject to community property laws are two important factors in determining the structure of a trust and in determining a joint trust, Ms. Metz said.
"Beyond that, the issues in estate planning for same-sex couples shouldn't actually be that different going forward," Ms. Metz said.
