The article “Advising Clients in Same-Sex Relationships” (Dec. 2011, page 48) was generally well written and complete in coverage. However, I note an incorrect legal analysis concerning the integrity of trusts, specifically revocable trusts, over wills.
The last sentence of the section “Retirement Benefits and Transfer Tax Planning” states, “Since a will can be contested, a revocable living trust may provide a more secure way for domestic partners to provide for a survivor.” While it is true that a will can be contested, it is equally true that any trust, revocable or irrevocable, may be contested—at least in Florida. However, it is likely that many other states have similar provisions in their trust statutes, as Florida is one of 23 jurisdictions that have adopted the Uniform Trust Code. Furthermore, Florida recently amended its probate and trust codes to make will and trust challenges more consistent.
There are many factors that need to be considered when developing an estate plan for anyone, same-sex couples or otherwise. To the authors’ point about avoiding challenges to estate planning documents, irrevocable trusts—at least in Florida—might be a better alternative to a will as challenges to the validity of an irrevocable trust would most likely be brought while the settlor is alive (an impossibility with wills and most revocable trusts). However, irrevocable trusts have significant downsides, namely their irrevocable nature, so due care must be used when choosing to implement one.
Bradley R. Gould, Esq.
Fort Pierce, Fla.
Authors’ reply: We appreciate Mr. Gould’s thoughtful comments, which underscore the complexities facing same-sex couples and the importance of carefully considering the planning strategies utilized. CPAs will benefit from partnering with attorneys to ensure their advice is in compliance with local law. We did not intend to imply that trusts may not be contested.
Sandy Johns, CPA
Larry Maples, CPA, DBA