Estate Planning for Same Sex Couples

I. Introduction
The benefits of marriage are unavailable to same-sex couples. Moreover, outdated intestacy statutes fail to recognize the close family bond between same-sex partners. Moreover, most intestacy laws discriminate against same-sex couples in that gay or lesbian relationships are generally considered invalid for the purposes of distributing the estate of a deceased partner who dies without a will. Accordingly, in order to reap inheritance and tax benefits that are automatically afforded to traditional married couples, these same-sex couples must rely on extensive and creative legal planning.
There are several tools that provide solutions to this issue. Contract based estate planning techniques are the most commonly used tools for distributing a decedent’s property at death. Though the following planning mechanisms provide certain advantages, they are also accompanied by various disadvantages. II. Wills
A will is an instrument by which a person directs dispositions of property to take effect upon death. It is the only document that allows a decedent’s probate assets to pass testate to persons of his or her choosing as opposed to passing via the strict laws of intestacy, under which the surviving partner would receive nothing. Even in the presence of strategies used to avoid probate such as intervivos trusts, wills are an essential precautionary measure to demonstrate the intent to pass property outside of probate, to demonstrate the intent to dispose of personal effects, or “in the event of forgotten or unanticipated assets.” III. Trusts
The major disadvantage in trust lies in their funding—the trust terms can only operate to dictate distribution of assets that are titled in the trust’ name and, therefore, the grantor will have to retitle any assets to be controlled by the trust. Any assets that are