Because same-sex marriage laws differ depending on jurisdiction, advisors need to get educated on how to navigate the increasingly complex financial issues facing the lesbian, gay, bisexual and transgender community, according to experts in the field.
State laws differ and the federal government does not recognize gay marriage, which immensely complicates the issues of wills, medical directives, taxes and gifting, according to Janis McDonagh, a partner in the trusts and estates practice of Marcum LLP, a national accounting firm headquartered in New York City.
McDonagh was part of a panel discussion in New York City last week on the financial issues facing the gay community that was sponsored by Marcum and New York-based Bernstein Global Wealth Management.
Bernstein has extensive experience serving nontraditional families and tries to promote education on the topic whenever possible, said Andrew Auchincloss, director of the Wealth Management Group at Bernstein.
"There are more questions than answers for these issues," said McDonagh, "but the key is planning."
Another key is bringing all of a client's advisors-financial, legal, accounting-together so that plans are made in a coordinated fashion, Auchincloss said.
Both agreed a financial advisor needs to reach out to experts on same-sex copule issues to help clients avoid surprises that will cost them money.
"Federal law has not changed, so even if a gay couple marries in New York, that marriage is not recognized for federal income tax laws," said McDonagh, adding that this can trigger many problems.
For instance, if a couple lives in New York, they have to figure out their federal income taxes as individuals and then file as a married couple in New York but determiine if filing jointly or separately is more advantageous.
"Then what if one person works in New York and another works in Pennsylvania, where gay marriages are not recognized? You need to know how tax and other laws affect that couple. If a gay couple married in New York moves to Florida, where gay marriage is actually prohibited, they cannot divorce in Florida," she explained, illustrating just a few of the unexpected problems that can arise.
A financial advisor needs to rely on experts to navigate different state laws. "Don't just believe someone who says they are an expert. See if they have spoken on the subject and published articles," she cautioned.
An example of some of the pitfalls same-sex couples can face was illustrated by Auchincloss, who recently advised a wealthy gay couple on their business plan. The couple had started a business together but they were not married and did not have a will. If one partner died, his share of the business would automatically have gone to his family, not his business and life partner. So a will was written to make sure the business would go to the partner. But this brought up the problem of estate taxes and gift taxes. Auchincloss said the couple took out life insurance to make sure they could afford the transfer if something happened to one of them.
"Sometimes, [same-sex couples] are so overwhelmed by these issues that they default to no action at all," he said.
Couples should take some time to focus on the potential problems and make the necessary plans so they are not a source of worries, McDonagh said.
Other issues to consider for non-married couples are that non-spouses do not have automatic medical power of attorney if a partner is disabled or incapacitated, said Cathy Pareto, a CFP and founder of Cathy Pareto & Associates, an independent wealth management firm in Miami. She specializes in same-sex couples issues.