Now that lesbian and gay couples have the right to marry in Florida, there has been a rush to the altar for many long-time couples. It is worthwhile for any couple (gay or straight) about to contemplate marriage to do some financial planning first. The following is a checklist of items to help newly married couples address basic financial planning:
▪ Pre-nuptial Agreement: A pre-nuptial agreement is an important legal document signed prior to marriage clarifying the rights of each spouse to assets acquired before and after marriage. Each spouse needs to review the terms of a pre-nuptial agreement with his or her own attorney. Even if you both decide against a pre-nuptial agreement, you should understand the impact of this decision should you ever divorce.
▪ Homestead Rights: 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 always understand your rights. Under Florida law, the surviving spouse has a life estate (ownership of the property for the duration of your life) in the homestead regardless of whether the property is titled in his or her name. Most married couples will want their homestead titled as Tenants by the Entirety (see below).
▪ Tenants by the Entirety (TBE): Protecting your property by titling it “TBE” is an important marital benefit for two main 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-titled property avoids probate. If one spouse passes away, the other spouse takes full ownership of the asset. (This is similar to Joint Tenants with Rights of Survivorship but distinguished from Tenants in Common, whereby each owner has the right to leave his or her share of the property to any beneficiary upon the owner’s death.)
▪ Retirement Accounts: Review the beneficiaries on your retirement accounts. As a surviving spouse, you may now roll over retirement account assets without making required minimum or lump sum distributions. Note that in nine states, though not in Florida, spousal consent is required if you designate someone other than your spouse as the primary beneficiary of a retirement plan. Surviving spouses in Florida are entitled to Social Security benefits and qualify as spouse beneficiaries under federal pension laws, known as ERISA.
▪ Healthcare Surrogate: In the event of a medical emergency, you want to have strong medical powers to ensure your spouse the best care possible. You should take full advantage of Florida’s healthcare surrogate laws by signing a healthcare surrogate form prepared by an attorney. A good healthcare surrogate gives each spouse the legal power to access the other spouse’s medical records regardless of federal HIPAA laws, discharge the doctor if needed, and change the hospital if needed. Medical powers help to minimize hospital bureaucracy.
▪ Living Revocable Trusts: All married couples 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. Trusts allow you to set the parameters for caring for your spouse/children/loved ones in a wise and prudent manner.
▪ Unlimited Marital Deduction: Same sex married couples can now take advantage of the unlimited marital deduction for inter-spousal asset transfers. This allows each spouse to give within the marriage without having the gift trigger a reduction in either spouse’s estate or gift tax exclusion rights.
▪ Gift Splitting: Gift splitting allows couples to equally contribute into a conveyance of a gift to a third-party. Same sex married couples can now gift a combined amount of $28,000 per recipient by combining each spouse’s annual gift exclusion.
▪ Joint Tax Returns: Same sex married couples now have the option to file a joint federal tax return, regardless of their state of residence (as long as they were married in one of the states approving same sex marriage). Same sex married couples have the opportunity, as well, to go back 3 years (statute of limitations on refund claims), if they were legally married in another state, and file for amended income tax returns if it is to their advantage.
In all cases, speak with your professional advisor(s) — attorneys, accountants, financial planners — to determine what makes the most sense for you. Everyone’s situation is unique and deserves individual attention.
Gene Sulzberger, CFP, JD, TEP, is president of Sulzberger Capital Advisors, a registered investment advisor in Miami.