Denver Estate Planning For Same-Sex Couples
Estate Planning for Same-Sex Couples in Colorado
The legal landscape concerning same-sex couples has changed rapidly in recent years. With the Supreme Court granting federal recognition to same-sex marriage, a number of issues arise when it comes to estate planning for same-sex couples. That is why it is important to have experienced estate planning lawyers on your side to help you meet these challenges and to ensure that your family is cared for in the future.
Same-sex couples in Colorado have far more legal protection today than they did even a decade ago. Legally married same-sex spouses generally receive the same Colorado and federal protections available to other married couples, including important rights involving inheritance, taxes, retirement benefits, and property.
But legal recognition of a relationship is not by itself an estate plan.
At Colorado Estate Planning Law Center, our founding attorney, Karen L. Brady, has more than 21 years of legal experience handling a wide range of estate planning matters. To find out more about how we can help you, contact us online or call (303) 420-2863 to schedule an appointment to discuss your situation.
At Colorado Estate Planning Law Center, we believe a good plan should clearly identify the people you consider family, give the people you trust authority to act for you, protect your partner and children, and reduce opportunities for others to interfere with your wishes. That is important for every family, but it can be especially valuable for LGBTQ+ families whose relationships may not always fit traditional assumptions about spouses, parents, children, and extended family.
It is also worth remembering that laws and court decisions can change. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges established the constitutional right of same-sex couples to marry. Federal legislation and changes to Colorado law have since provided additional protections for same-sex marriages. Nothing currently prevents same-sex couples from marrying in Colorado or receiving the estate planning rights associated with marriage.
Nevertheless, recent changes in constitutional law have reminded many families that relying entirely on judicial precedent or statutory default rules may not provide the level of certainty they want. Thoughtful estate planning can create additional layers of protection by putting your wishes, relationships, and decision-makers directly into legally enforceable documents.
Estate Planning Concerns Involving Same-Sex Couples
There are a number of things to take into consideration when it comes to estate planning for same-sex couples. If children from a previous relationship are brought into your family, you will need to address how your estate is to be divided among them and your spouse. Even if children are not involved, legal recognition of your marriage means that your estate will be subject to the succession laws of Colorado, which may not align with your wishes.
For couples who choose not to enter into a legally recognized marriage, the need for a valid estate plan may be even more important than one for a married couple. You do not want to find out after it is too late that you are not legally entitled to any portion of your partner’s estate.
We can help update any existing estate plan you may have to better reflect your wishes and your current situation. If you do not have an estate plan in place, our Denver estate planning lawyer can work closely with you to craft a unique plan that will give you the peace of mind that comes with knowing the future of your loved ones will be mapped out.
Why Same-Sex Couples Need a Specialized Estate Plan in Colorado
What protections do married same-sex couples have?
For estate planning purposes, a legally married same-sex couple in Colorado is generally treated the same as any other married couple.
A surviving spouse may have inheritance rights if a spouse dies without a will, certain rights against an estate even when a will exists, potential federal estate and gift tax benefits, and rights involving retirement accounts and other benefits.
Colorado has also strengthened its protection of marriage equality. Colorado voters removed the former same-sex marriage prohibition from the Colorado Constitution in 2024, and the legislature subsequently removed obsolete statutory language restricting marriage to opposite-sex couples.
Federal law provides another layer of protection through the Respect for Marriage Act, which requires recognition of marriages that were valid where entered into.
Those protections matter.
But we generally recommend creating an estate plan that says explicitly what you want rather than relying on the government to fill in the blanks.
What happens if a same-sex partner dies without a will or trust in Colorado?
The answer depends enormously on whether the couple is legally married.
If you are married and one spouse dies without a will, Colorado’s intestate succession laws provide inheritance rights to the surviving spouse. The exact amount depends on whether the deceased spouse has surviving descendants, whether those descendants are also descendants of the surviving spouse, and in some circumstances whether a parent of the deceased spouse survives.
That result still may not be what the couple wanted.
For example, blended families can produce very different intestacy results than a surviving spouse might expect.
For an unmarried couple, the risk is considerably greater.
Simply living together for many years does not automatically make one partner an heir. Unless another legal status or planning arrangement applies — including, in appropriate circumstances, Colorado common-law marriage or a properly created designated beneficiary agreement — an unmarried partner may have no right to inherit the other partner’s probate estate under Colorado’s default intestacy laws.
Instead, property could pass to the deceased partner’s children, parents, siblings, or more distant relatives.
That can produce an especially painful result when the surviving partner and the deceased partner’s legal relatives did not have a close relationship.
A will or trust allows you to determine who inherits instead of leaving that decision to Colorado’s intestacy statutes.
What additional risks do unmarried same-sex couples face?
Marriage creates many legal rights automatically. An unmarried relationship generally does not.
As a result, unmarried partners should pay particular attention to questions such as:
- Who inherits the home if one partner dies?
- Does the surviving partner have the right to remain in the home?
- Who may make financial decisions if one partner becomes incapacitated?
- Who may make medical decisions?
- Who receives retirement accounts, life insurance, and other beneficiary-designated assets?
- Who has authority to handle funeral, burial, or cremation arrangements?
- Will a partner have access to information and authority when dealing with hospitals, financial institutions, or other third parties?
- What happens if the deceased partner’s family disagrees with the surviving partner?
These issues are not unique to same-sex couples, but LGBTQ+ families sometimes have an additional concern: a biological or legal family member may not fully recognize or respect the couple’s relationship.
Estate planning gives the client the opportunity to decide who should have authority rather than letting that authority rest with an estranged relative or a default statute.
How does parentage affect estate planning for same-sex couples with children?
Parentage deserves special attention in any estate plan involving children.
Colorado law has made significant progress in recognizing parent-child relationships created through assisted reproduction and other family-building arrangements, regardless of gender or sexual orientation. Colorado law can recognize an intended parent who is not genetically related to the child, and Colorado also provides procedures through which certain parents may use adoption to affirm an existing parent-child relationship.
Nevertheless, estate planning and parentage planning are related but separate issues.
A will can nominate a guardian and create an inheritance for a child, but a will cannot by itself establish a person’s legal parentage.
Families using assisted reproduction, donor conception, surrogacy, adoption, or other family-building arrangements should make sure the legal parentage of both parents is secure and then coordinate that status with the estate plan.
For some families, creating an additional court-recognized record of parentage may also provide useful protection if the family later travels or moves to a jurisdiction whose laws differ from Colorado’s.
Essential Estate Planning Documents for Same-Sex Couples in Colorado
There is no special “same-sex estate plan.” The fundamental documents are largely the same documents we recommend for other clients. What changes is the attention we give to relationships, parentage, fiduciary choices, family dynamics, and the possibility that someone might challenge or disregard the client’s wishes.
Will or Revocable Living Trust
A will identifies who should receive probate property and who should administer the estate. It can also nominate guardians for minor children and establish trusts to protect an inheritance.
A revocable living trust can provide additional planning opportunities, including management of assets during incapacity and administration after death without requiring every trust asset to pass through probate.
For same-sex couples, particularly unmarried couples, a will or trust can be critical because it replaces assumptions with instructions. Instead of asking whether Colorado law considers someone your heir, your estate plan can simply say who you want to inherit.
Durable Financial Power of Attorney
A durable financial power of attorney authorizes someone you select to manage financial and legal matters if you cannot handle them yourself.
Marriage alone does not give a spouse unlimited authority to act for an incapacitated partner. And an unmarried partner has even fewer automatic rights.
A carefully drafted power of attorney can give your chosen agent authority to deal with banks, property, bills, investments, insurance, business matters, and other financial issues without requiring a court-supervised conservatorship.
Medical Power of Attorney and Advance Directives
A medical power of attorney lets you choose who should make health care decisions if you cannot communicate your own wishes.
For many same-sex couples, this document has significance beyond convenience. It puts your choice in writing. Rather than leaving medical providers or relatives to determine who should speak for you, the document identifies the person you trust.
A living will or other advance directive can also document your wishes concerning life-sustaining treatment and end-of-life care.
Beneficiary Designations and Asset Alignment
A complete estate plan must also look beyond the documents.
Retirement accounts, life insurance, payable-on-death accounts, jointly owned property, and other assets can pass according to beneficiary designations or ownership arrangements rather than under a will.
We refer to coordinating those assets with the estate plan as Asset Alignment.
For married and unmarried same-sex couples alike, reviewing how each major asset is owned and where it will pass can prevent a carefully drafted estate plan from being undermined by an old beneficiary designation or inconsistent account title.
Build a Plan Around Your Family, Not Around Assumptions
Estate planning for same-sex couples has changed dramatically, and in many ways for the better.
Today, married same-sex couples in Colorado have strong legal protections. But the lesson of the past several decades is not that estate planning for LGBTQ+ families is no longer necessary. It is that families are best protected when their legal documents clearly express their intentions instead of requiring someone else to infer them.
The goal is not to plan from fear that the law will change. It is to create enough layers of protection that your family is not unnecessarily dependent on what the law happens to assume.
Whether you are married, unmarried, raising children together, blending families, or simply want to make sure the people you love are the people legally empowered to care for you, a carefully designed Colorado estate plan can provide that certainty.
Contact Colorado Attorneys For Your Estate Planning Needs
Whether or not you and your partner plan on entering into a legally recognized marriage, it is important to think about what you want for the future of your family. Contact our Denver business planning attorneys online or call (303) 420-2863 to schedule an initial consultation to discuss your wishes. From our Arvada law offices, we serve people throughout the greater Denver area.
