By Phillip B. Rarick, Esq. and Jacqueline R. Bowden, Esq.
For same-sex couples living in Florida, now is the time to take full advantage of rights long delayed to make sure that your spouse or partner is cared for come rain or shine. Here is a checklist of some of the most important action items.
- Living Revocable Trust: Make instructions to care for your spouse and children. Every couple should have detailed, legally binding instructions to care for their loved ones. The best way to accomplish this is to prepare or update your living revocable trust. Such a trust can help avoid court intervention in the event of disability or death and make sure all your hard earned money goes to your spouse or children in a wise and prudent way. For more information about Florida living trusts, see our Quick Reference Guide: Understanding Living Trusts for Florida Residents.
- Health Care Surrogate: Sign medical powers to avoid hospital bureaucracy. In the event of a medical emergency, you want to have strong medical powers to make sure your spouse can get the best care possible. This means you should take full advantage of Florida’s health care surrogate laws by signing a health care surrogate prepared by a Miami trust attorney. A good health care surrogate gives each spouse the legal power to get total access to the other spouse’s medical records regardless of federal HIPAA laws (Health Insurance Portability and Accountability Act, discharge the doctor if needed, and change hospitals if needed.
- Homestead Rights: Protect the castle. Florida has some of the strongest laws in the United States for protecting your primary residence from creditors. If you own a home, you should have the title reviewed by an attorney and understand your rights. Under Florida law, the spouse has a life estate in the homestead regardless of whether the property is titled in his or her name. Most married couples will want their homestead titled as “TBE” or Tenants by the Entirety. See the following discussion.
- TBE Title: Protect your property. TBE Title or “Tenants by The Entirety” is an important marital benefit for at least two reasons: (1) Property held as TBE offers good asset protection: a creditor must have a claim against both spouses to reach TBE property; if the claim is against only one spouse, the claim will fail; (2) TBE property avoids probate. All married couples should periodically review how they hold title to property to secure the maximum benefit of protections provided by Florida law.
- Nuptial Agreements: Clarify Rights to Pre-Marital and Post-Marital Property. Recent federal and state court rulings appear to clear the way for same-sex couples to have legally binding nuptial agreements equal in strength to agreements entered into by opposite sex couples. A nuptial agreement is an important legal document to clarify the rights of each spouse to marital assets acquired prior to the marriage and assets acquired after the marriage.
- Retirement Accounts. A surviving spouse may now rollover retirement account assets without the necessity for a required minimum or lump sum distribution. A surviving spouse now automatically qualifies as a spouse beneficiary under Federal pension laws known as ERISA – Employee Retirement Income Security Act. For other important federal tax benefits see our recent Alert, 9 Key Benefits Available to Florida Same Sex Couples.
- See an Attorney and Read the Book. This short checklist identifies some of the biggest issues same sex couples should address immediately in order to take full advantage of the historic and profound changes in Florida law. However, this list is incomplete. We recommend two action items: A. Make an appointment with an attorney. We welcome the opportunity to meet with you and your partner. Call Phil Rarick or Jacqueline Bowden, Miami trust attorneys, at (305) 556-5209 or email info@raricklaw.com. B. Read the book. My colleague and friend, attorney Alan Gassman, has written the best and most current book that I am aware of examining the legal options and benefits now available to Florida same sex couples. The book is The Florida Advisor’s Guide To Counseling Same Sex Couples and is available at Amazon.com.
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.