California same-sex couples deal with many of the same estate planning issues as opposite-sex couples.  However, they also face several unique challenges relating to the federal tax system.  Therefore, when developing an effective estate plan for a California same-sex couple, the federal tax system should be considered.

One of the most glaring distinctions between married opposite-sex partners and domestic partners under federal tax law is in relation to the federal marital tax deduction.  Domestic partners and same-sex couples legally married in California are not eligible for the unlimited federal marital deduction for property passed outright to a surviving domestic partner or same-sex spouse.  Under the federal Internal Revenue Code (IRC), this deduction is only permissible between “spouses.”  The IRC defines a “spouse” as an opposite-sex married couple.  A qualified California estate planning attorney can advise same-sex couples on transferring assets in a way that minimizes federal taxation.

It is not uncommon for same-sex couples’ estate plans to be challenged by family members.  If there is concern that someone will contest the estate plan, it is best for each party to have their own attorney to avoid an invalidation of the estate plan on grounds of duress or conflict of interest.  Because of many legal uncertainties in characterizing same-sex couples’ income and tax consequences, California domestic partners are best represented by attorneys who have a strong background in family law as well as estate planning law.

For more information about estate planning, please visit the Lonich Patton Erlich Policastri website.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.