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Estate Planning Concerns for Same Sex Couples

Published September 16, 2009

GLBT couples face several unique challenges, many of which are due to the fact that the federal government does not recognize state-sanctioned marriages, civil unions or domestic partnerships. Social Security provides one key example of inequality built into the law. Social Security is a federal law, and the federal government determines eligibility rules. The failure of the government to recognize GLBT marriages results in the loss of benefits for same sex couples.

Same sex couples are not eligible for Social Security spousal benefits. When two married individuals retire, the spouse with the lower monthly benefit can choose to take either his or her own benefit or one-half the higher-earning spouse’s benefit, whichever is greater. For example, if one member of a married couple qualifies for a yearly benefit of $15,000 and the other for a yearly benefit of $6000, the lower earning spouse could instead choose to receive $7500 as a spousal benefit. A lower earning member of a same sex couple does not qualify for the higher benefit.

Same sex couples are also not eligible for survivor benefits, in which a surviving spouse may qualify for the higher-earning spouse’s benefit after s/he has passed away. Legally adopted minor children, however, are eligible for survivor benefits. Since New York law permits single, joint and second-parent GLBT adoption, same sex couples can and should take advantage of the law and legally adopt any minor children to whom they are not biologically related.

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