Florida Homestead Rights for Same Sex Married Couples After January 5, 2015

                Are you a Same Sex Married Couples in Florida? Know Your Homestead Rights

As the celebrations continue since January 5, 2015, have you begun to get your affairs in order to take advantage of your marriage now being recognized in Florida? If you and/or your spouse own a Florida home as your primary residence NOW is the time to take stock. Do you know that:

 

 Now you can own the homestead as ‘tenants-by-the-entirety’ which means each of you has a 100% interest in the homestead tax exempt property AND the surviving spouse automatically inherits the property at the death of the first spouse.

1. The property will not be reassessed at the death of the first spouse.
2. If the current deed does not reflect your marital status then a new deed should be prepared and recorded so that you and your spouse receive these important and valuable benefits.
3. If both of you have filed for the homestead tax exemption then you do not need to re-apply when the new deed is recorded.  If only one spouse has filed a homestead tax exemption it is recommended that the second spouse file a homestead application.
4. You cannot claim a Florida homestead exemption and also claim a permanent residence based tax exemption anywhere else!
5. As of the 2016 tax year Broward County will cancel a same-sex married couple’s homestead tax exemption and assess penalties if it learns that the couple had a Florida homestead exemption and a permanent residence elsewhere. This means you will need to choose which property to maintain as your primary residence for tax purposes and report all changes timely to the tax appraiser’s office.
6. Updating your deed should be part of creating a plan that will protect your and your spouse’s legal rights during your lifetimes and after your passing.

     Don't delay, schedule your consultation today - be on your way to creating peace of mind.      We want to be your trusted planning advisor through life.

Social Security and Marriage Equality Act of 2014

                                   The Social Security and Marriage Equality Act of 2014

On May 8, 2014, Senator Patty Murray from Washington sponsored the Social Security and Marriage Equality Act of 2014 (SAME).  The objective of the bill (s. 2305) is to amend the Social Security Act so that same-sex married couples will be entitled to social security benefits based on place of celebration and not place of residence at the time the application for benefits is filed.  If passed, its proposed effective date is June 26, 2013, the same date the United States Supreme Court issued the Windsor decision finding section 3 of DOMA unconstitutional.

The Social Security Administration (SSA) is currently accepting applications for benefits from same-sex married couples.  However, if the couple is residing in a non-recognition state the application will be held and not processed.  This is because SSA law is still based on the law where the applicant resides at the time the application is filed.  So in a state like Florida that does not recognize same-sex marriage, regardless of where the marriage was performed, the social security application will not be processed. This is creating an inconsistent and unequal result for the LGBT community.  Change is necessary.

There is a similar bill (H.R. 4664) pending which you can read by clicking here.  You can track the progress of the bills at Congress' website 'GovTrack.us' .   I encourage you to read my blogs regularly to stay informed on the progress of this bill and many other important issues!

On July 17^th a Florida Keys (Monroe County) Judge Overturned the Same Sex Marriage Ban in Florida.

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MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

Several major federal agencies have announced that they are now providing federal benefits to same-sex legally married couples.  Most recently, the Internal Revenue Service announced that same-sex legally married couples would receive all federal tax rights and responsibilities as provided to heterosexual couples Click here for I.R.S. Release. The best news is that these rights are available regardless of where the couple resides.  Living in a non-recognition state has no impact. Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence.   Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence. Click here for the HHS Press Release 

 

Medicaid is a federal program that helps pay for long-term care. Now that many federal agencies are complying with the U.S. Supreme Court's ruling in Windsor Windsor legal decision, it seems apropos that the Center for Medicare & Medicaid Services ("CMS") follow suit and provide same-sex legally married couples with federal Medicaid spousal impoverishment protections.  The goal of Medicaid spousal impoverishment protections is to enable the healthy spouse to remain in the home and to have sufficient financial resources to care for themself.  This is critical when a couple is coping with of one spouse having a chronic illness that cannot be cured.  When a married couple faces an illness together the experience is the same regardless of sexual orientation, race, color, or origin.  The couple needs and deserves financial security.  Medical spousal impoverishment protections include:

 1.  The healthy spouse keeping more financial resources than the ill spouse.  In Florida, the healthy spouse can keep up to $115,920.00.

 2.  The healthy spouse having a minimal level of income to help pay for the maintenance of the home.  In Florida, the healthy spouse should have a minimum of $1,891.25/month and if below that level is entitled to request diversion of income from the ill spouse.

 3. Permitting the couple to transfer resources to the healthy spouse with no penalty, look-back period, or delay in qualifying for Medicaid.

 4. Protecting the home while the ill spouse is alive as well as after the ill spouse has died. 

 

While the issue of federal benefits being available to same-sex legally married couples is a politically sensitive issue, the reality is that federal benefits must be made available to everyone equally and fairly.  This morning I sent a letter to Cynthia Mann, Deputy Director of CMS. My request is supported by the National Academy of Elder Law Attorneys (NAELA). NAELA.  Click here to read the NAELA letter I will keep my readers posted on the outcome of the request.  In the meantime, be an informed and prepared consumer. Schedule a consultation today and be on your way to creating an effective estate and long-term care plan. Discount coupon for consultation.

Why The U.S. Supreme Court Should Hold DOMA Unconstitutional: Don't Forget the Children!

     This is a time in history of great significance as our Supreme Court is charged with deciding whether the Defense of Marriage Act (DOMA) violates the equal protection clause of the Constitution. There is no doubt that DOMA treats LGBT individuals different from people whose marriages are recognized by law.  More importantly, DOMA hurts the children of those relationships and creates a disparate impact between them and children whose parents are heterosexual.  Here's why:

1. Many partners are unable to obtain health insurance coverage through their partner's policy from work and end up paying more by being required to buy two policies;
2. Children of an LGBT relationship don't have the non-birth parent's name on their birth certificate and therefore, aren't entitled to Social Security benefits if that second parent dies or, becomes incapacitated. Those social security benefits can make the difference between the child and the surviving parent having financial independence or, a financial struggle to survive;
3. Children of an LGBT relationship don't have inheritance rights to the non-birth parent's estate unless they are named in the Last Will & Testament or, are adopted and that is likely prohibited under state law;
4. The LGBT partner of a veteran will not be entitled to survivor benefits as the military does not recognize these relationships;
5. Similarly, a child with a disability whose deceased non-birth parent was a veteran will not receive veteran benefits which could mean a world of difference to that child's future;
6. The surviving partner of a deceased LGBT individual has no rights to social security survivor benefits.  If the deceased partner was the higher wage-earner the loss of this income can result in the survivor losing financial independence including being unable to remain in the home;
7. When a spouse who owns an I.R.A. dies the surviving spouse can 'roll-over' the I.R.A. to his/her own I.R.A. and it can continue to be held for the life of the surviving spouse's beneficiaries. This helps delay the payment of income taxes.  However, the surviving spouse in an LGBT relationship must take distributions from the I.R.A. over his/her remaining life expectancy which will cost the family (i.e. children) years of tax deferred growth of the I.R.A. ;
8. The federal estate tax exemption and marital deduction minimizes as well as defers the payment of federal estate taxes but is only applicable to legally married couples.  LGBT couples have the exemption but not the marital deduction and as a result end up paying more in federal estate taxes when the wealthier partner dies.  Again, it is the children who suffer by receiving less of an inheritance while more money is paid for taxes.

These are just a few examples of federal benefits that are unavailable to LGBT individuals and their families.  It is time for a change so that federal privilege and protections truly are available to all United States citizens and their children.