In 2013, when same-sex marriage first became legal in Maryland, there was a rush to tie the knot. Whether couples headed to the altar, the courthouse, or the leafy comfort of their own backyards, male couples and female couples alike seized the opportunity to turn their emotional bond into a legal commitment.
The initial flurry of same-sex weddings may have abated, but the social and legal benefits of marriage are still no less attractive to those of us in the LGBTQ community. The prospect of inheriting from each other tax-free, of receiving special Social Security assistance, of possibly receiving an income-tax break—all these are enough to give even the most hesitant couple reason to consider exchanging wedding bands.
Whether a relationship is relatively new or has already gone the distance, couples who are contemplating marriage should consider taking certain important steps, both before they get married and after they have exchanged vows.
Before You Marry
Consult with an accountant. Some couples pay less in taxes after they get married, but some pay more under the “marriage penalty.” Those in the latter category tend to be high earners with similar incomes, perhaps two doctors with salaries well into the six-figure range. Your accountant can run your tax numbers from the previous year as a married couple filing jointly, as a married couple filing separately, or as two single persons.
This exercise will give you a good sense of what to expect come Tax Day if you do tie the knot. Some couples discover that they will have to pay more in taxes but decide to get married anyway. After all, the benefits of marriage are more than financial, and many of us in the LGBTQ community lobbied hard to win the right to get married.
Consider preparing a prenuptial agreement. This may seem like the least romantic thing a couple in love could do. After all, isn’t a prenup just a roadmap for divorce? Not exactly. Prenups do spell out what would happen if the marriage ended, whether through death or divorce. But the process of thinking through those possibilities usually gives each partner a sense of comfort. They have contemplated the worst-case scenarios and now know that each of them would be protected if one of them came to pass. It enables them to enter into marriage with a greater sense of maturity, and with the reassurance that comes from having prepared for the unexpected.
After You Marry
Prepare an estate plan. Having a lawyer draw up wills for each of you may seem just as sobering as preparing a prenup, but it is no less important. One key aspect of prenuptial agreements is that each partner waives certain rights. These include the right to claim a share of a deceased spouse’s estate or to serve as the personal representative (“executor”).
By preparing wills, you can redirect these waived rights as you see fit. Maybe you want to leave you entire estate to your spouse. Or perhaps you have prior children you want to benefit by establishing a trust. Wherever you may decide to direct your wealth upon your death, having a will is essential to ensure that your wishes are carried out.
Your estate plan should also include durable powers of attorney and advance medical directives. These essential documents will ensure that your new spouse, or someone else you trust, is authorized to manage your finances and health care if you even become incapacitated.
If you and your partner already have estate-planning documents, you should have new ones prepared as a married couple to reflect your changed status. In addition, older documents may be outdated and in need of revision.
Update your deed. One of the unsung benefits of marriage is the right to title your house as “tenants by the entirety.” This form of ownership transfers the house to the survivor if one spouse should die, and it protects the property from certain types of creditors. These include a creditor with a claim against either spouse individually. Preparing and recording a new deed is an easy process, and it gives married couples a form of free insurance. Ask your attorney for details.
The late Supreme Court Justice Ruth Bader Ginsburg once said, “I had a life partner, and that made all the difference for me.” If you and your partner are ready to commit to a life together, taking these important steps may make a world of difference as well.
Lee Carpenter is a partner at the Baltimore law firm of Niles, Barton & Wilmer and an adjunct professor at the University of Maryland Carey School of Law. He can be reached at 410-783-6349 or firstname.lastname@example.org.
Learn more about LGBT estate planning at mdlgbtestateplanning.com.
This article is intended to provide general information, not specific legal advice.