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Wednesday, September 1, 2010

Estate planning for same sex couples

Are the goals of estate planning any different for same-sex couples than for opposite-sex couples? No, generally not; the partners in the relationship want to look after each other financially and medically, and want to protect any children of the relationship. They also want to maximize their estates so that their loved ones get more, and the taxman gets less.

In Canada, same-sex couples have the same legal rights when it comes to inheritance as any other common-law couple. Couples can now name a same-sex spouse as a beneficiary on a pension at work, for example.

There are still a few differences between married couples and common-law couples (one that comes to mind is the dower right to a life estate in the matrimonial home in Alberta). However, that difference has no relevance to whether the couple is same-sex or not.

So what steps should a same-sex couple take to put a solid estate plan in place?

1. Make a Will with an experienced estate planning lawyer. A strong Will is essential for everyone, but particularly important if you think your extended family may disapprove of your choice of partner and decide to contest the Will. Make sure the Will names a guardian for any minor children.

2. Own your home in joint tenancy. This will give your spouse a right of survivorship in the property, so there will be no court application or other procedure problems involved in the transfer of the title. You'll know that your partner will be able to stay on in your home after you have passed away.

3. Consider designating your partner as the beneficiary of your life insurance. Even if your Will is contested or delayed, the life insurance funds will flow directly to your spouse, independent of what's happening with the Will.

4. Consider designating your partner as the beneficiary on registered instruments such as RRSP and RRIF, for the same reasons. There may also be tax benefits to doing so.

5. You absolutely MUST have an Enduring Power of Attorney and Personal Directive in place to allow your partner to make financial and medical decisions should you lose your capacity.

Taking these steps will mean that most of your estate will pass to your spouse independently of your Will. It may not be necessary for your Will to be probated, which keeps matters much more private and much less costly.

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