Same-sex couples can marry just like opposite-sex couples, but there are some differences that must be highlighted when same-sex spouses are raising children together — especially when only one of the spouses has formally established their parental status.
When a same-sex couple has a child together, the child will only have the genes of one parent (unless there is a new fertility procedure that is unknown at the time of this writing). Because the child only carries one parent’s DNA, the nonbiological parent needs to ensure that they have the same and equal parental rights for estate planning purposes.
This will safeguard (1) the child’s inheritance rights and (2) the nonbiological parent’s right to assume full custody should the biological parent die or become incapacitated.
Using adoption to establish parental and inheritance rights
Many same-sex couples will incorporate the adoption process into their estate planning if they haven’t already adopted their child or children. By formally adopting the child, the nonbiological parent confirms that the child is their relation and heir. Usually, this adoption is carried out as a “step-parent adoption” or “second-parent adoption” depending on the specific state laws that come into play.
Formalized adoption provides additional security that the parent’s assets will go to the children in the event of an unexpected death. This way, even if aunts, uncles or other family members succeed at contesting the will, state intestacy laws will likely come into play to give the children priority in terms of their inheritance rights.
In situations where a nonbiological parent never took the time to legally adopt the child — and especially if there’s no estate plan on record — there’s a chance the child might not receive anything at the time of death.
Trusts can establish a permanent connection between the nonbiological parent and the child
A trust created with specialized provisions by the biological parent could be another way to ensure that the nonbiological parent stays in touch with the child in the event that another family member secures guardianship after the death of the biological parent.
Finalize your estate plan now
If your estate plan is incomplete, and you’re in a same-sex marriage that involves children, it’s vital that you complete your estate in a way that protects your child’s inheritance rights. By learning more about Illinois estate planning law and how it applies to your unique situation, you can better safeguard your and your family’s rights.