McClellan Legal LLC Estate Planning & Tax Assessment Blog

Monday, August 5, 2013

Estate Planning for Same-Sex Couples in Pennsylvania

On May 20th, a federal judge struck down Pennsylvania’s law prohibiting same-sex marriage, saying it violates the U.S. Constitution.  We are closely monitoring this news and will update this page once we have additional clarity.   Please call our office if you have any questions.  

Unlike many of our neighboring states, Pennsylvania does not allow for same-sex marriage, civil unions, or domestic partnerships.  Further, Pennsylvania does not acknowledge same-sex marriages that were legally entered into in other states when they move to the Commonwealth.   

It is critical for people within the LGBT community to realize that despite the legal hurdles set forth by Pennsylvania in defining your relationships, many rights can be created via properly drafting and executing effective legal documents. The following are just some of the legal documents that are needed by same-sex couples to clearly define their desires (and any non-“married” couple for that matter): Wills, Trusts, Durable Powers of Attorney for Finances, and Healthcare Powers of Attorney.


A Will allows a person to define the distribution of their assets and define the people that will be responsible for administering their estate (e.g., executor or personal representative) at the time of their death.  For those that pass away without a Will, the distribution of assets will be set forth by state intestate laws.  In Pennsylvania, the intestate laws will exclude your partner from receiving from your estate despite any intentions that you had previously expressed.  A properly drafted and executed Will permits you, not the state, to define who and how will receive your assets.  While all Wills are subject to contest by family members, it is often a very difficult task to successfully challenge a Will it is professionally drafted.


Trusts (both revocable and irrevocable) are powerful tools to help same-sex couples control their assets and better plan for incapacity.  For example, since the trust legally owns the assets, it is much easier for your partner (if named as a trustee or co-trustee) to access the assets in times of need.  Trusts are not a replacement for wills, but serve as another tool in the toolbox to handle certain challenging situations.

Durable Powers of Attorney for Finances

Unless your assets are jointly titled, same-sex partners are unable to exercise control over each other’s assets.  A Durable Power of Attorney will provide authorization for your partner to manage your financial matters on your behalf in situations when you are incapacitated.  

Healthcare Power of Attorney

If you need medical aid and are unable to consent, your partner will not be authorized to access your medical records or make healthcare decisions on your behalf.  A Healthcare Power of Attorney will allow you to appoint your partner as your agent to make medical decisions for your care and obtain information about your condition.  

The above listed documents are just the bare essentials that same-sex couples should consider (along with Cohabitation Agreements) in order to ensure that their desires are expressed in a manner that is legally recognized in Pennsylvania.  James S. McClellan, Esq. is Pennsylvania licensed attorney focused on estate planning and is available to discuss the process of drafting and executing your legal documents.  Please call our office at (610) 444-5552 to set up a no-fee initial meeting.  

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McClellan Legal LLC is located in Kennett Square and serves clients throughout the areas of Avondale, Chadds Ford, Coatesville, Downingtown, Landenberg, Oxford, Phoenixville, Pottstown, West Chester, & West Grove.

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