LGBT Elder Law

Human rights are the fundamental rights that every living person is entitled to and are considered to be universal rights or laws regardless of age, gender, ethnicity, or sexual orientation.

In the United States (including all U.S. states and Washington, D.C., as well as all U.S. territories, except American Samoa), same-sex marriage has been legal since June 26, 2015. On this date, the United States Supreme Court ruled in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional. The court ruled that the denial of marriage licenses to same-sex couples and the refusal to recognize those marriages performed in other jurisdictions violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.

What Benefits Do Same-Sex Married Couples Qualify for?

With same-sex marriage being legal in the United States, LGBT married couples qualify for the following benefits:

  • Social Security benefits: Married couples get a big financial boost from certain Social Security benefit programs that have not historically applied to LGBT couples.
  • Spousal survivor benefit: A surviving spouse of a worker entitled to Social Security retirement or disability benefits may be entitled to receive retirement benefits based on the deceased spouse’s earning record.
  • Spousal retirement benefit: For retired married couples, a person whose calculated Social Security benefit is lower than that of his or her spouse may take half of his or her spouse’s higher benefit, rather than receive the amount calculated from his or her own earnings.
  • Lump-sum death benefit: A surviving spouse gets $255 from the federal government to help pay for funeral arrangements.
  • Estate and gift tax exemption: Federal law exempts a certain amount of money from federal estate taxes and federal gift taxes for all property left to a surviving spouse (currently the exemption is $5,450,000). The surviving spouse does not pay taxes on any amount he or she receives from the deceased spouse that’s under the exemption limit.
  • Estate Tax “Portability”: Married couples can combine their personal estate tax exemptions. This means that the second spouse to die can leave property worth up to $10,860,000 free from federal estate tax. Unmarried couples do not get the “portability,” so that the second partner in a relationship to die can leave only $5,4530,000 tax-free.
  • Veteran and Military Benefits: Spouses of deceased Veterans are entitled to numerous benefits, including health care, death pensions, educational assistance, home loan guarantees, vocational training, and bereavement counseling. Spouses of living military personnel may be eligible for health care, family separation pay, and relocation assistance, among many other benefits. Same-sex married spouses should also be entitled to these services and benefits.
  • Tax Benefits: Filing joint income tax returns with the IRS: Filing a joint return may offer advantages over separate returns. Many unmarried couples lose thousands of dollars per year because they have to file separate tax returns with the IRS.
  • Federal Employee Benefits: Federal employees in LGBT marriages may apply for health, dental, long-term care, life, and retirement benefits.
  • Medicare: The Department of Health and Human Services said that legally married LGBT seniors on Medicare would be eligible for equal benefits and joint placement in nursing homes.
  • Immigration: The Department of Homeland Security treats LGBT spouses equally for the purposes of obtaining a green card if the spouse is a foreign national. And the IRS treats same-sex marriages equally for tax-filing purposes.

For LGBT couples, planning is of utmost importance.

If a member of the LGBT community (or anyone, for that matter) fails to properly plan, the result can be devastating to his or her partner and family. Having no estate plan is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity.

The need for an estate plan is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Proper estate planning ensures that correct strategies are used to avoid penalties, extra taxation when possible, and the court and attorney costs of probate. A Revocable Living Trust can establish the client’s domestic partner as the trustee if the client becomes incapacitated through illness or accident. The Revocable Living Trust guarantees privacy, through avoidance of probate and its process of opening court records. The Advance Medical Directive can also avoid the potential problems of the client not maintaining control over his or her health care decisions and the domestic partner not having access to his or her partner during a period of incapacitation.

While laws have changed to promote greater equality for LGBT seniors, whether you are gay or straight, if you haven’t done so, now is the time to get started with planning for your future and for your loved ones! We here at the Farr Law Firm have strategies in place to help LGBT couples, whether married or not. With advance planning, each person, regardless of sexual orientation, can retain the benefit of the money, income, and assets it has taken a lifetime to accumulate. If you or your loved ones have not done Long-Term Care Planning, Estate Planning, or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call us as soon as possible to make an appointment for a consultation.

Other helpful LGBTQ links:

First Federally-funded Study on LGBT Aging Released

Challenges Faced by the Aging LGBT Community



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