Estate planning and charitable giving for the LGBT community can be a minefield for financial advisors, according to Turney P. Berry, an attorney who specializes in these issues.
Not all states have the same rules. Regulations also vary from one federal agency to another, which makes financial planning for lesbian, gay, bisexual and transgender clients complicated, according to Berry and Ray Prather, also an attorney who specializes in legal issues facing the LGBT community.
Berry and Prather were the speakers at a webinar today sponsored by the Society of Financial Service Professionals on Charitable Planning Strategies for the Non-Traditional Union.
Nineteen states and the District of Columbia recognize same-sex marriage; 11 states have had their bans on same-sex marriage struck down by the courts. Some states recognize same-sex civil unions or domestic partnerships, giving couples some legal rights, while some states do not recognize any legal rights for same-sex couples.
“This is a minefield for financial advisors,” Berry says. “As an advisor, you have to be clear what the status of your client is and what the state laws are that apply.”
Prather adds, “You can ask your clients whether they are married, but dig deeper. See if they have a marriage certificate or a civil union certificate.”
States that do not allow same-sex marriage do not have to recognize marriages that are valid in another state. At the same time, some federal agencies recognize the laws of the state where the couple lives, while others recognize the laws of the state where the marriage was registered, Prather says.
Most couples, whether they are recognized as being married or not, do not have to worry about federal estate taxes because the exemption is now $5.3 million and increases each year for inflation. But state estate and gift taxes vary and must be determined for each client individually, the lawyers say.
The changing federal and state laws also have affected gifts to charity. In some instances, both members of a couple need to agree to charitable donations made by their spouse.
Additional challenges will be raised as more same-sex couples that have been legally married begin to divorce, they say.