USA Law and Practice Contributed by: Diana Zeydel, Marc Selden, Benjamin Babcock and Brian Smith, Greenberg Traurig, LLP
genetically related to the child, is often more compli - cated, and often requires the termination of the sur - rogate’s parental rights. Practitioners typically address the class of descend - ants who may inherit from a decedent or such dece - dent’s descendants by carefully and clearly defining children and descendants, eliminating ambiguity. 9.2 Same-Sex Marriage Pursuant to the 2015 decision of the US Supreme Court in Obergefell v Hodges , the US recognises same-sex marriage in the same fashion as opposite- sex marriages. The recognition of marriage and the recognition of parentage are separate legal questions. The determination of parentage through assisted reproduction, donor sperm or eggs, and surrogacy are determined by state law. 9.3 Cohabitation and Unmarried Couples In the US, unmarried couples, including cohabitat - ing partners, generally do not have the same rights as married couples for tax and succession purpos - es. Absent a recognisable contractual arrangement or other estate planning documentation, unmarried couples typically have no right of inheritance and no authority to make financial or healthcare decisions for an incapacitated partner. In some jurisdictions, con - structs like common law marriage and/or domestic partnerships may be recognised. Acknowledgement, statutory requirements, and rights vary significantly by state. For example, whereas domestic partners in some states may qualify for certain healthcare rights, visitation, authority to make healthcare decisions, employment benefits, and state law property or sup - port rights, they cannot file joint federal income tax returns, do not qualify for the unlimited federal gift and estate tax marital deductions, and may have limited or no inheritance rights. Some states recognise the rights of cohabitating part - ners either through palimony laws or through cohabi - tation agreements or similar arrangements. These arrangements are often contractually defined and are more limited even when available. For purposes of succession and decision-making during incapacity, it is imperative that unmarried cou -
ples consider all-inclusive estate planning, like wills, revocable trusts, healthcare advance directives/living wills, durable powers of attorney, declarations nam - ing pre-need guardians, beneficiary designations, and business succession documents. These instruments aim to ensure that the intent of the unmarried couple is respected and entitlements are fixed in the event of death or incapacity and avoid ambiguity in the absence of statutory rights or in the case of controversy.
10. Charitable Planning 10.1 Charitable Giving
US law encourages charitable giving through a range of federal tax incentives that play a significant role in both income tax and estate planning. Cash Contributions and Non-Cash Contributions For income tax purposes, individuals generally may deduct cash contributions to qualifying public chari - ties up to 60% of adjusted gross income (AGI). Con - tributions of appreciated capital gain property, like publicly traded securities held for more than one year, generally are deductible at fair market value, subject to a 30% AGI limitation. Contributions to private foundations are deductible, although lower percent - age limitations generally apply. Cash contributions to most private foundations are generally deductible up to 30% of AGI, while contributions of appreciated property are generally limited to 20% of AGI. Beginning in 2026, individual taxpayers who itemise deductions may deduct charitable contributions only to the extent such contributions exceed 0.5% of AGI. Taxpayers subject to the highest federal income tax rate generally receive a reduced tax benefit from item - ised deductions because of the new 35% limitation on the value of such deductions. Taxpayers who do not itemise deductions may claim a limited deduction for certain cash contributions made directly to qualify - ing public charities. Contributions to donor-advised funds, supporting organisations and most private foundations generally do not qualify for this deduction. Common Charitable Vehicles For estate tax purposes, transfers to qualifying chari - table organisations generally qualify for an unlimited
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