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.
"Surviving partners do not automatically have a share in the (partner's) estate and certain retirement benefits are not available to surviving partners, including Social Security," Pareto said.
One of the biggest problems is that the federal government does not recognize gay marriage, McDonagh added. If a couple is dealing with immigration, a partner cannot get a green card for the other partner. ERISA does not recognize the couple as married, so one partner cannot roll over retirement money to the other. The federal Family Medical Leave act also does not apply to same-sex couples.
"The more you dig, the more issues you find. It is a minefield and mistakes can be costly," McDonagh said.
-Karen DeMasters