Same-Sex Marriage Estate Planning Rights are not Importable to Pennsylvania

Same-sex marriages are in the news, but the majority of the world and the majority of the states in the USA continue to recognize marriages between only a man and a woman.

As of the date of this article, same-sex marriage has been recognized in Massachusetts (2004), Connecticut (2008), Iowa (2009), Vermont (2009), New Hampshire (2010), District of Columbia (2010) and New York (2010). Civil Unions are now approved in New Jersey (2007), Illinois (2011), Delaware (2012) and Hawaii (2012). Domestic Partnerships with rights that vary from full marriage now exist in California (2005), Oregon (2008), Washington (2008) and Nevada (2008).

To counter what they saw as a rising tide of same-sex marriage rights, legislators passed The Defense Of Marriage Act (DOMA). Under DOMA, the federal government defines marriage as a legal union between one man and one woman and states that no U.S. State may be required to recognize as a marriage a same-sex relationship considered a marriage by another state. This means that if you enter into a valid same sex-marriage, domestic partnership or civil union in another state, such as New Jersey or New York, then later move to Pennsylvania, Pennsylvania has no obligation to recognize the marriage (and does not) so for Pennsylvania purposes your partner and yourself will be considered as unrelated for estate planning purposes, including inheritance tax rates.

The effect of DOMA, and Pennsylvania’s having not on its own recognizing same-sex unions, has a substantial effect for tax purposes. For example, the Pennsylvania rate for inheritance tax between married couples is 0%, but the rate of inheritance tax between unrelated persons is 15%. For example, a $1,000,000.00 estate transferred between husband and wife has $0 tax, but the same transfer between a couple having entered a Civil Union in another state nets a $150,000 tax.

To counter this non-transfer of rights, if you move to Pennsylvania after entering a valid same-sex marriage, civil union, or domestic relationship in another state, you should have your estate planning documents reviewed and updated by an estate planning professional. Typically this means updating your Will, Power of Attorney for both Health Care and for Finances, review and verify the beneficiary designations made on your life insurance and qualified plans, clarify burial arrangements, and, if you have children, arrange custody and form trusts to hold assets for your children with both responsible trustees and responsible protectors.

Our website provides more information about our firm and more information about the services provided for same-sex couples by our Philadelphia Will Drafting Attorneys. Our firm focuses exclusively in the area of estate planning, probate, and the litigation surrounding estate planning and probate, so if you need assistance in developing your Estate Plan please call one of our Estate Planning Lawyers for a free consultation. We have Estate Planning Attorneys in Pennsylvania, New York, New Jersey, Minnesota and Florida. Estate Planning is all our Estate Planning Lawyers do!