USA – CONNECTICUT Law and Practice Contributed by: William Kambas, Lawton Leung and Samantha Kopf, Withers
11. Planning for Non-Traditional Families 11.1 Succession Rights and Estate Taxes for Non-Traditional Families On 12 November 2008, the Connecticut Supreme Court ruled in Kerrigan v Commissioner of Pub- lic Health that the state’s prohibition on same-sex marriage violated the Connecticut Constitution. The legalisation of same-sex marriage afforded same-sex married couples the same privileges that heterosexual couples in Connecticut had enjoyed. However, this ruling only established a right within the state of Con- necticut. It was not until 2015 that the Supreme Court legalised same-sex marriage across the United States in the landmark case of Obergefell v Hodges . Connecticut allows surviving spouses to take an elec- tive share of the estate assets, amounting to one- third of the assets passing by will (Conn. Gen. Stat. § 45a-436). If a bequest to a surviving spouse does not amount to one-third of the probate estate, the sur- viving spouse can file a notice in the probate court for the statutory share. However, property outside of the probate estate is not included in the statutory share. Jointly held property, life insurance proceeds and assets funded into a revocable or irrevocable trust during lifetime are not subject to this election (see Dalia v Lawrence , 226 Conn. 51, 627 A.2d 392 (1993); Cherniack v Home Nat. Bank & Trust Co. of Meriden , 151 Conn. 367, 198 A.2d 58 (1964)). Fund- ing a revocable trust during lifetime can ensure that assets pass in the desired manner. Effective estate planning should take unique parent- child relationships into consideration. There are many conceivable parent-child relationships which an indi- vidual may not inherently think of as creating a legal obligation under intestate succession. However, under the Connecticut Parentage Act, other parental rela- tionships can exist outside of the typical biological parents. Parentage can be established through court adjudication or a written acknowledgement of parent- age. Once such relationship is established, the child can have a right to inheritance through intestate suc- cession. Alternatively, estate planning can effectively include or exclude certain children and descendants regardless of legal parentage. It is important to review
defined classes of beneficiaries to ensure that the intended beneficiaries are included. Another consideration becoming more commonplace as technology advances is posthumously conceived children. Connecticut statute provides that a child of the decedent who is conceived and born after the death of the decedent is deemed to have been born during the decedent’s lifetime as long as certain fac- tors are present. • First, the decedent must have prepared a written document, signed by the decedent and the dece- dent’s spouse, which specifically states that his sperm or her egg may be used for the posthumous conception of a child and that his or her spouse has authority to exercise custody over such repro- ductive material. • Second, the posthumously conceived child must be in utero no later than one year after the date of death of the decedent. The surviving spouse must provide the documenta- tion to the fiduciary of the decedent’s estate and pro- vide the probate court with notice of such document (Conn. Gen. Stat. § 45a-785). 11.2 Conflicts and Divergent Laws Common law marriage is generally established when two people cohabitate and hold themselves out as a married couple without having obtained a marriage licence. This form of marriage is not recognised in Connecticut and is only permitted in a minority of states. However, if a couple moves to Connecticut after they validly establish a common law marriage in a common law marriage state, Connecticut will rec- ognise such marriage to be lawful unless the marriage would otherwise be prohibited by statute (Conn. Gen. Stat. § 46b-28a).
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