Estate planning for same-sex couples in Pennsylvania: What do I need to know?

By: Buneka J. Islam, Esq. & Kathleen A. Maloles, Esq.

Same-sex marriages are legal in Pennsylvania, following the District Court’s ruling in Whitewood v. Wolf on May 20, 2014. Now Pennsylvania resident same-sex couples who were married in a different state, or have gotten married in the last few days since the court’s decision are able to enjoy the same benefits afforded to their opposite-sex counterparts. These include all the federal benefits such as filing joint taxes, employee benefits, and social security benefits.

At the state level, there are many estate related benefits that are now available to same-sex couples. The availability of these benefits may greatly impact your estate plans. For example, in Pennsylvania, there are no inheritance taxes on transfers to spouses upon the death of one spouse.  Previously, a surviving spouse in a same-sex marriage would be subject to inheritance taxes at the rate of 15%. Prior to Whitewood, even if the asset, such as a bank account or a house was owned jointly, the surviving spouse would have to pay 15% inheritance tax on half the total value of the asset. Now, the same transfers are Pennsylvania inheritance tax free! Moreover, Pennsylvania same-sex couples that are married also enjoy the unlimited marital deduction transfer to spouses available at the federal level.

The surviving spouse may also claim $3,500 in real or personal property from the estate of the deceased spouse as the family exemption. This claim has preference over all other claims against an estate, other than the cost of estate administration. Thus, the same-sex couples now enjoy this protection from creditors’ claims against estates of their deceased loved ones. The same-sex surviving spouse also has the sole authority to decide what will happen with the remains of their spouse.

The surviving spouse in a same-sex marriage now also has priority to serve as the administrator of the estate of the deceased spouse, in the absence of a will appointing him or her as executor. Prior to Whitewood, in the absence of a will naming an executor, this right would pass to the surviving intestate heirs of the deceased, which are the children, or parents if there are no surviving children.

Children who are not the biological children of the deceased spouse and have not been adopted through a second-parent adoption may now inherit their share of the intestate estate. Further, the surviving spouse now automatically receives guardianship of any minor children of the couple.

Prior to the Whitewood ruling, many same-sex couples in Pennsylvania have felt compelled to spend significant amounts of money in preparing legal documents and legal instruments such as trusts to minimize tax burdens and to take care of their loved ones after their death.  Other couples married in a different state before becoming a resident of Pennsylvania. While it is generally good practice to visit your estate planning documents from time to time, in light of these new and welcome changes to the Pennsylvania legislature, now is an especially good time to review your estate planning documents, or create a new plan if you don’t have one already.

The estate planning attorneys at Maloles Law, LLC can assist you with putting an estate plan in place for same-sex couples.  The lawyers at Maloles Law, LLC provide estate planning services for LGBT or same-sex spouses in the following Pennsylvania Counties:  Philadelphia County, Bucks County, Delaware County, Montgomery County, Chester County, Lehigh County, Northampton County, Carbon County, Pike County, Wayne County, Monroe County and Lackawanna County.  Our estate attorneys also offer estate planning advice to New JerseyLGBT or same-sex spouses in the following counties:  Burlington County, Camden County, Gloucester County, Atlantic County, Ocean County, and Cape May County.  For more information, contact the estate attorneys at Maloles Law today at 215.600.1362 for your no-obligation initial consultation, or visit our website at www.maloleslaw.com.

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