By Melissa Montgomery-Fitzsimmons, Director of Wealth Planning at First Western Trust Bank
Despite the Supreme Court’s ruling on gay marriage, couples in a number of states face bureaucratic hurdles. The latest example is a Kentucky county clerk appealing an order to issue same-sex marriage licenses.
I suspect financial advisors across the country are being peppered with a number of questions and issues, large and small, that gay and lesbian clients have regarding their new nuptial rights and responsibilities.
Advisors also are likely to face queries from these clients about often thorny concerns that overlap family law, such as adoption and child-custody arrangements. These issues, which vary from state to state, underscore the need to take a team approach to counseling.
Of course, extra paperwork will need to be done, too: redrafting estate and other documents, so they properly reflect the new spousal status and assuring that the additional rights now available under federal law are optimized.
These rights include filing taxes jointly; transferring property to a spouse during one’s lifetime without owing federal gift taxes; receive a spouse’s Social Security and pension survivorship benefits; and the eligibility to use the Family and Medical Leave Act to care for a spouse.
The Supreme Court, however, did the bulk of the work with its historic ruling last month, and the answers to many questions — about tax implications, estate planning and property division risks — now won’t differ from those for same-sex couples.
Here are a few important recommendations that advisors should offer same-sex couples, married or soon-to-be, to protect and enhance their financial well-being.
Update all trusts, wills and other financial documents
These agreements were drafted under laws that were current at the time, and may not fully protect your clients’ rights in the future. Spouses, for example, may legally pass assets back and forth to each other without having to pay any gift or estate tax. But when unmarried partners do so, it is typically both gift taxable and estate taxable. If clients haven’t updated their wills, they could be leaving their beloveds a massive tax headache. Beneficiary designations on IRAs, annuities, and life insurance policies should also be reviewed to make sure that they are up to date.
Don’t rush — plan
After a long struggle to win the right to get married, many couples may be in a rush to do so. But if they’re also preparing for a major purchase together–such as a house–be careful about whose names are on the title and mortgage. Many of the tax implications that affect the transfer of existing assets also apply to the acquisition of new ones. Clients can title assets jointly with a spouse, for example, without being subject to the hefty 40% gift tax. But if they haven’t made it down the aisle (or to City Hall) yet, putting that new residence in both of their names could be a costly mistake.If they’re lucky enough to have just found their dream house, and they absolutely can’t wait to buy it, tell them to consider putting the deed in just one of their names – at least until after the wedding day.
Get a pre-nuptial agreement
It’s not romantic but neither is a divorce, and that is what happens to half of all marriages. Whether a same-sex couple or not, if they have substantial assets, a pre-nup is a good idea. Depending on the state of residency, length of the marriage, whether children are involved and the earning status of each partner, the economic effects of a divorce can be catastrophic. Lessen the possible blow in advance by suggesting a pre-nuptial that is fair to each partner and not agreed to under duress, taking into account the assets that each partner brings to the marriage.
Eligible for a refund?
If one part of a couple paid for the other’s health insurance before they were married, those payments were included in the payer’s taxable income. Now that they’re legally married, they can apply for a Federal tax refund on those past payments.
Consult an expert. Better yet, consult a team of them
Remind clients that their financial planner may not know everything needed to maximize the benefits and minimize the risks of the Supreme Court decision. They might want to consider an estate planner with experience in the LGBT community. Or find an insurance advisor who has previously worked with couples moving from non-married to married status. Moreover, law firms that have offices in states where same-sex marriages were already legal may offer better help navigating the law if clients reside in a state where they weren’t legal. Having a team of advisors is almost always the best approach, and certainly makes sense when the law is still evolving.
Remember: If you’re in a same sex couple, the Supreme Court has provided you with the full legal benefits of marriage. Make sure you get all your financial benefits as well.
Melissa Montgomery-Fitzsimmons is Director of Wealth Planning at First Western Trust