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Well, if a same-sex couple created their estate plan prior to Windsor, they were preparing it with against the background that the federal government didn’t recognize their marriage. And so, for example, if I was advising a same-sex married couple, I would advised the wealthy person not to leave property outright to his spouse because there was gonna be an estate tax anyway, and then when the spouse died, there’d be another estate tax, a second estate tax. And generally what I would suggest is that it be put in a trust for the benefit of that spouse. And that trust that I would have suggested wouldn’t necessarily have been eligible for the marital deduction. So these individuals need to look at their plan, recognizing that their spouse is a spouse, and do the same kinda planning that you would have done for heterosexual married couples before the DOMA Case was DOMA was struck unconstitutional.
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New York tax and estate planning attorney Carlyn McCaffrey of McDermott Will & Emery shares why same-sex couples should review existing estate plans.