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Probate Planning for Same-Sex Spouses in Virginia

In recognition of the recent Supreme Court case, same-sex spouses are treated the same under the Virginia laws of intestacy and have the same rights as opposite-sex couples. Although same-sex spouses are treated the same and have the same statutory rights as opposite-sex couples, not all of the issues regulating to probate in administering administration of estate have yet to be worked out. Rights may be consistent but the interpretation of wills prior to the law can create issues which have not yet been resolved, meaning there may still be some gray areas.

The probate process in Virginia for same-sex spouses can be complex in this transition, so a Virginia probate attorney can be helpful in streamlining the process.

Estate Planning Concerns

Estate planning is important for all married couples. Same-sex spouses may wish to consider how to deal with issues such as capacity or passing on their asset at death. Estate planning for all couples is unique to their goals and to their family dynamic and this is true for same-sex couples as well. Some common issues that come to life in the Virginia probate process for same-sex couples are regarding children. Often children are adopted or conceived with the assistance of reproductive technology. Although adopted children and biological children of same-sex couples are treated the same as opposite-sex couples, it may be prudent to address issues regarding children so that they can outline specifically what they inherit from both spouses in the event that they are only adopted by one spouse or only genetically related to one spouse.

Impact on Children

Generally, the probate process and the rights of children born of same-sex spouses in Virginia are the same as children born of opposite-sex-spouses. The only difference is where a child has been brought into a family either by adoption or by the use of reproductive technology. For example, in a case where only one parent has adopted a child, it is possible that that child would not receive an inheritance from the non-adopted parent without that parent providing a last will and testament or a trust, or doing some estate planning prior to death that does provide for the distribution of assets to that child.

Laws of Intestacy

Children are treated the same under the laws of intestacy regardless of whether or not they are born or adopted to same-sex couples or opposite-sex couples. The only unique issue for both same-sex couples and opposite-sex couples is the event of a child being adopted into a family where they are adopted by only one spouse or being biologically related to only one spouse. In those cases, it may be helpful to do estate planning that would allow the child to inherit from the non-adopted parent or the non-biologically related parent. The laws of intestacy are based on lineage, so it is important for example, in a case where one of the spouses, although having taken the responsibility of parenting the child, but is not the legal parent of the child, makes arrangements to provide for the child or children through estate planning prior to death.

Making an Estate Plan

It is important to know that same-sex spouses now have the same statutory rights as opposite-sex spouses. These rights include the ability to elect against the last will and testament or some required inheritances and a priority for same-sex spouses to serve. Things that were not available or not always available to same-sex couples are now available in Virginia as well as throughout the United States.

Attorneys value forming relationships with their clients and understanding their unique family dynamics. Regardless of the couple’s family dynamic, a probate attorney will strive to work with them to create an estate plan that is tailored to their needs and goals for same-sex spouses during the probate process in Virginia. An attorney will make it their goal to tailor an estate plan best suited for their client’s family dynamics, their assets, and what they hope to achieve throughout the estate planning in the estate administration process.