Montgomery County Probate Process for Same-Sex Spouses

For decades, the law prohibited same-sex couples from enjoying the privileges that come with marriage. Fortunately, the Supreme Court abolished this law nationwide in 2015, and same-sex couples are now free to marry.

Even though same-sex marriages are legally the same as heterosexual marriages, many couples worry that the law or their relatives will ignore their wishes in the event of their death. Since the Montgomery County probate process for same-sex spouses is the same as it is for heterosexual spouses, an experienced probate lawyer could assist in creating an effective estate plan that will allay these fears.

Benefits of Marriage in Estate Planning

Same-sex marriage rights are still relatively new. Maryland legalized same-sex marriage in 2013, and the federal government followed suit two years later. Many same-sex partners took advantage of the change in the law immediately and got married quickly. However, many others never felt the need to reinforce their partnership with a marriage certificate and remained together as unmarried partners.

Marriage has many benefits over unmarried partnership when it comes to estate planning. Married couples can take advantage of marital trusts, life insurance policies, and other devices that are not available to unmarried people. In Maryland, there are three significant estate planning benefits to marriage over unmarried partnership:

No Inheritance Tax

In Maryland, the state assesses an inheritance tax on any assets inherited by a person who is not a spouse or a close blood relative of the decedent. An unmarried partner will pay a tax rate of ten percent on their inheritance, which can be a significant cost. If the majority of the value of the estate is illiquid or tied up in investments or real estate, the unmarried partner may struggle to come up with the cash to pay the taxes. Same-sex spouses avoid this tax because any inheritance left to a surviving spouse is tax-free.

Delayed Estate Taxes

In addition to the inheritance tax, Maryland assesses an estate tax on estates worth more than five million dollars. Marylanders can attempt to reduce the amount of their estate and avoid paying this tax by using the marital estate deduction. This deduction allows spouses to transfer an unlimited amount of property to each other before and after death.

Additionally, the surviving spouse has the option to preserve their deceased spouse’s unused exemption with a concept called portability. While these taxes may need to be paid eventually, using the marital deduction and delaying the estate taxes may allow the surviving spouse to live comfortably without a hefty tax bill.

Property Ownership

Married people have the right to own real estate as tenants by the entirety. Only married couples qualify for this type of ownership, which protects the marital home from creditors. A tenancy in the entirety means that after a person’s death, ownership of the property transfers to the surviving spouse without going through the probate process.

Children Create Unique Issues for Same-Sex Spouses

While same-sex marriage may be on equal legal footing with heterosexual marriage, there are still some unique problems of which same-sex couples should be aware.

It is not uncommon in a same-sex marriage for one or both spouses to be legally or biologically unrelated to their children. In a probate case, children only inherit from the decedent if they are related by blood or adoption. If a same-sex couple wants to ensure that their children have the right to inherit from both parents, then both spouses need to be either the biological or adoptive parents of their children.

Parents can also avoid this problem by providing for their children in their Last Will and Testament. The danger in this is that if a person dies before creating such a document or fails to update the will to include new children, there is a risk that their children will be disinherited.

Let a Montgomery County Lawyer Guide Same-Sex Spouses Through the Probate Process

While the Montgomery County probate process for same-sex spouses should be nearly identical to that for heterosexual spouses, people of all sexual orientations can benefit from a consultation with an experienced estate planning attorney. Protect your family’s inheritance and make sure your wishes are followed by scheduling a meeting with a local Maryland trusts and estates lawyer now. Our attorneys strive to tailor estate plans to meet the needs of all family dynamics to achieve a smooth estate administration.