Estate Planning for Same Sex Couples in Georgia

By Alfred Fargione

The State of Georgia does not permit same sex marriage, nor does it recognize same sex marriages performed in another state. While it is important for everyone to have their estate planning documents up to date, it is even more important for same sex couples to have their estate planning documents in place because the State will not recognize their marriage for purposes of intestate succession. At the very least, and without considering any details of the couple’s assets, it is crucial that every same sex couple have their Georgia Wills, Georgia Advanced Directive for Medical Care, and Georgia Financial Power of Attorney properly drafted and executed.

In their Georgia Wills, the couple should appoint whom they wish to serve as executor of their individual Wills. Having a Will in place is important as it allows the surviving spouse to inherit from the deceased spouse. If a same sex spouse dies without a Will, the State of Georgia will not allow the surviving spouse to inherit because the State does not recognize the surviving spouse as a spouse, and therefore the deceased spouse will be treated as if they were not married for purposes of intestate succession. Personally, I believe that this violates the United States Constitution, and would love to bring a suit challenging the constitutionality of this.

As the State of Georgia does not recognize same sex marriage, same sex spouses are not treated as spouses under the law and therefore can be prevented from making medical decisions on behalf of their spouse. In order to ensure that this does not occur, the same sex spouses need to draft Georgia Advanced Directives for Medical Care, and appoint each other as their medical agent. This will allow each spouse to make medical decisions for the other should one become incapacitated.

Finally, because the State of Georgia does not recognize same sex marriage, same sex spouses need to have Georgia Financial Powers of Attorney in place. This document will appoint the spouses each other’s financial agent, allowing them to make financial decisions for the other should one become incapacitated, and unable to do so.

If you are in a same sex marriage, please contact Fargione Law, LLC today to schedule an appointment to get you estate in order today.

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