June 2015 marked a huge win in the legal rights battle for same-sex couples when the United States Supreme Court ruled that same-sex marriage is a fundamental right that must be legally recognized in all 50 states ( Obergefell v. Hodges.) As with all married couples, estate planning is a critical part of proper financial planning. Certain issues, however, are unique to same-sex couples and are worth highlighting here.

Need for a Will

All responsible individuals with assets should have a Will. Same-sex couples who aren’t married, however, are particularly vulnerable without a Will. Just because same-sex couples can now legally marry doesn’t mean that all will opt to do so. Since many have been cohabitating and unmarried for so long, a lot will simply choose to stick with the status quo. But without a Will, your property would pass according to your state’s inheritance laws – which typically benefit children, parents, siblings, and so on. These laws do not take into account unmarried partners, un-adopted children or even close friends, so there is a chance your assets could pass to unintended beneficiaries. The best way to make certain your assets pass to your loved ones is to have a current, valid, written Will.

Adopted Children

If a same-sex couple is raising children together and only one partner is the legal parent, a landmine of potential issues exist. These concern custody, social security and health insurance benefits, and inheritance. For example, if the legally recognized parent dies, the other parent may lose custody of the child to the relatives of the legal parent. If the non-legal parent dies, the child may not be entitled to receive survivor benefits such as social security that otherwise would be available. It may be advisable to do what’s called a “second-parent adoption.” A legal process (allowed in both New Jersey and New York) by which a co-parent can adopt the biological or adopted child of his or her partner. This type of adoption often occurs when one partner has already adopted a child and the other partner later wants to adopt the same child. If the second parent adoption isn’t done, then, at the very least, a Will should name the non-legal parent as guardian of the child.

Living Will/Health Care Power of Attorney

Not every state will automatically give the spouse the right to make health care and end of life decisions for someone. It’s best, therefore, to have in writing the same-sex partner who should be entrusted with making these important decisions. Lack of a Health Care Power of Attorney could make for a stressful situation if there is a dispute between spouse and family members. Sometimes, family members’ acceptance of the same-sex union can change suddenly in the face of life-threatening situations.

Retirement Plans/401(k)

Same-sex couples who choose to marry now have built in protections for benefiting from each other’s retirement accounts. Federal pension law requires that the spouse be the primary beneficiary of retirement plans, so the employee cannot simply name someone else unless the spouse specifically waives the benefit.

Funeral and Burial Wishes

Last, but not least, making your final wishes known can calm concerns and put to rest any questions about your desires.   This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest. You can also name your partner as the one authorized to make these important decisions.

Think about how you feel when you’ve misplaced your cell phone or forgotten it. Many of us feel immobilized as access to email communications, bill paying, social media and the like come to a halt. So much of our daily lives is now controlled by on-line accounts. Now imagine if you or a loved one were no longer able to supply log-ins and passwords. How would the lack of access to these “digital assets” of yours affect your loved ones?

A generation ago, the belongings you left behind upon death were tangible (furniture, jewelry, letters, etc.) and the history of your financial property was on paper. Today, some of the most valuable keys to our lives and identities exist digitally and are technically owned by companies like Google or Facebook.

For the digital assets stored on shared servers in the cloud, legal systems have yet to catch up to help decide who controls your data when you’re gone. Currently, only a handful of states have enacted laws to address digital estate management, and there is no uniform federal law on the topic. Therefore, if you’re in a state without clear-cut digital estate guidelines, the various service agreements of Internet companies govern what happens to our digital identities after death.

Email Accounts

Email providers strive to protect users’ privacy, even after death, and most will not provide access to the contents of an email account. But companies have differing policies; to give you a flavor, Yahoo and Gmail handle the issue as follows.

• Yahoo: You can request that your loved one’s account be closed, billing and premium services suspended, and any contents permanently deleted for privacy. However, Yahoo will not provide passwords or allow access to the deceased’s email account.
• Gmail: You can submit an application to obtain the contents of the person’s Gmail account, but according to Gmail, only in “rare cases” will access be granted. Gmail also allows a user to name an “Inactive Account Manager”, which is a trusted person who can download some of your content in the event the account goes inactive for a certain period.

Social Media Accounts

As more and more people live on social media, precious personal information in the form of messages and photos can become trapped within a deceased person’s social media account. For example, in recent years, there have been cases where a loved one has committed suicide, and the surviving family members are desperate to access social media accounts, in hopes of finding answers to questions which could haunt them for a lifetime. For a visual guide to social media after death, see Mashable.  Companies have different policies which are evolving as we speak and should be checked on regularly.

• Facebook: Users can request that a decedent’s account be turned into a memorial or removed, however for privacy reasons, the social network said it cannot provide anyone with login information. Facebook does allow you to name a legacy contact to look after your account if it’s memorialized. The legacy contact can do limited actions such as write a pinned post such as memorial information and respond to new friend requests. Currently, you can also give your legacy contact permission to download a copy of what you’ve shared on Facebook.
• Twitter: Family members can request that a loved one’s account be deactivated. However, the company will not release the password.
• Drop Box: Families can make a formal request to access the deceased person’s account, the approval of which will take time. Among other requirements, they ask for “a valid court order establishing that it was the deceased person’s intent that you have access to the files in his or her account after the person passed away and that Dropbox is compelled by law to provide the deceased person’s files to you.”

On-Line Financial Accounts

Bank accounts, brokerage accounts, and other financial companies will always allow the authorized personal representative of an estate access to the paper statements of such accounts. Access to a deceased person’s on-line account, however, is a different matter and passwords will not be released. Since most of us conduct all our transactions on-line, it would be helpful for our personal representatives to have access to on-line account information.

How to Manage Your Digital Assets

All of the above demonstrates that relying on the companies to allow access to a loved one’s account is a gamble and at best, will be a major hassle. The best way to successfully manage one’s digital assets is to give your trusted persons access to your on-line life in a sensible manner that doesn’t involve the companies themselves.

Consider preparing a complete list of your passwords, online accounts, and other digital property—and keeping it up to date. This list helps fiduciaries and family members find your online accounts and digital property, ensuring no property is overlooked, and provide for a smooth and efficient administration. Once the list is created, keep it in a secure location, like a safe deposit box or a home safe, and let your trusted persons know.

Updating a physical hard copy of a list may prove to be cumbersome, however. One solution may be to keep both an electronic list and separate written paper instructions. Create an encrypted electronic list on your smartphone or your computer and then email this list to your loved ones. Then, in a separate paper instruction sheet, describe how to find and access your encrypted electronic list, and include the master password. Keep the separate written instruction sheet in a secure location, like a safe deposit box or a home safe. Using the master password for an encrypted electronic list is also convenient for you to use while you are living because it’s secure, easy to update, and accessible at all times if it’s on your smartphone.

Digital Afterlife Services

There are several on-line companies that will both keep your encrypted electronic list and provide a mechanism for designated fiduciaries or family members to access the un-encrypted list. Some of these are Legacy Vault, PasswordBox’s Legacy Locker, and SecureSafe.

Creating a plan of action to handle one’s digital assets upon death is an often overlooked, yet increasingly important, step in the estate planning process. Eventually, there will come a time when the management of one’s digital assets will be a routine topic. Until then, know that you are on the cutting edge of handling all your affairs by dealing with this important topic now.

As more and more of us live longer, second, third or even higher numbers of marriages are increasingly common. There are any number of estate planning and related issues unique to our new (often) blended families. While the Brady Bunch lived almost in a utopia of family harmony, the reality of his, hers and ours when it comes to children often wreaks havoc of traditional notions of planning and inheritance.

Everyone knows a story of “Inheritance Diverted”. The most common is about Sally, and her parents, Sue and Ted. Sue dies suddenly at age 65 after a 25 year marriage to Ted. A year later, Ted remarries Gloria, a lovely woman with no assets, who has a son, Matt, from her first marriage. Ted and Gloria are married 20 happy years when Ted dies leaving his entire estate to Gloria. At Gloria’s death five years later, Matt inherits it all. Sally never inherits Sue and Ted’s accumulated wealth…. According to Sally, Mom is turning over in her grave…all of her hard work passing to a stranger.

In recent years we often hear the story of “Bob” and “Gail” who acrimoniously divorce after a 20 year marriage. Bob would never want Gail to receive a dime more from him. But he neglects to change his life insurance and retirement plan beneficiaries. Ten years later, Bob dies leaving his entire estate by Will to his longtime companion, Kelly. He believes that this does it all. In fact, while many state’s laws automatically terminate the rights of an ex spouse in most assets, they do not control everything – particularly those where a valid beneficiary designation exists and has not been changed. Retirement plans governed by ERISA follow Federal law; and the courts have held that even if state law disinherits an ex spouse, the beneficiary designation on those plans controls – even if long out of date. Kelly is excluded and Gail is left to pass those inherited assets on to her new husband (Bob detested him) and her pet charity (to which Bob was strongly opposed!).

According to the Centers for Disease Control and Prevention, we are seeing longer and longer average life expectancies (over 80 in some states!). With longevity, comes serial blended families. They have become common, if not the norm.

A well considered, carefully implemented estate plan means that your intentions will be realized, regardless of how blended your family becomes. For help with these or any other legal issue, please consult with a qualified estate planning attorney at Gartenberg Howard, LLP.