LGBTQ Estate Planning

Estate planning is critical for everyone: single, married, straight and LGBTQ. However, for the LGBTQ community, estate planning provides protections to help guard against discrimination when people are reluctant to recognize your relationship, even if you are married.

In many states, if a member of the LGBTQ community fails to plan properly, the result can be devastating to his or her spouse or partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity. This need for an estate plan is critical in case of an accident or illness that renders a partner or spouse incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Even if you are married, planning is critical in the event you encounter resistance to recognize your marital rights.

History of Same-Sex Marriage

In U.S. v. Windsor, the U.S. Supreme Court made federal benefits available to spouses in same-sex marriages and cleared the way for same-sex marriage. In U.S. v. Windsor, the Supreme Court struck down a section of the Defense of Marriage Act (DOMA), a federal law defining marriage as only between a man and a woman. That section of the law denied federal recognition to same-sex couples validly married under state law. The purpose of the Court’s ruling was to ensure that all married couples within a state are treated equally under federal law.

Then in 2015, in a narrow victory, the Supreme Court ruled 5-4 in Obergefell v. Hodges that there is a fundamental constitutional right to marry, which includes same-sex couples. It also ruled that a same-sex marriage valid in one state must be recognized in all states.

While there is still a ways to go with the prevention of discrimination in other areas, such as employment, the LGBTQ community achieved a remarkable milestone: Marriage Equality.

Marriage By Any Other Name . . .

Some states and local jurisdictions offer domestic partnerships, civil unions, or similar methods of legal recognition for same-sex couples. These forms of relationships are offered in addition to marriage. The rights and responsibilities of domestic partnerships or civil unions vary substantially from jurisdiction to jurisdiction. For example, in some states such relationships other than marriage do not affect property rights between the parties, but in other states they do. One thing is clear, these non-marriage alternatives will not result in recognition of the relationship by the federal government.

Before committing to a marriage, domestic partnership or civil union, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBTQ community. That attorney can counsel you on the implications in your unique situation.

The Problems Estate Planning Solves for the LGBTQ Community

An LGBTQ couple can avoid numerous problems through proper estate planning:

• For a married same-sex couple, proper estate planning will ensure they get all the state and federal benefits of their marriage, while avoiding probate, maintaining their privacy and protecting their assets.
• For an unmarried same-sex couple, proper estate planning will ensure their partner will have legal rights to make health care decisions, protect their rights to inherit assets from each other while avoiding probate, and utilize planning strategies to avoid the burdens of extra taxation when possible.
• A Living Trust can nominate the spouse or partner as the trustee, i.e. manager of their spouse or partner’s affairs, if he or she becomes incapacitated through illness or accident.
• The Health Care Power of Attorney can avoid potential problems if a spouse or partner becomes incapacitated. It allows a spouse or partner to appoint their spouse, partner or someone they care about to make health care decisions on their behalf if they are incapacitated. This prevents potential problems where a spouse or partner may not be given access to his or her incapacitated spouse or partner.
• A proper estate plan will ensure your assets are distributed to whom you want, when and how you want.
• The Living Trust may protect privacy, through potentially avoiding the process of opening court records. This would be beneficial for any clients and their domestic partners who wish for their relationship to remain confidential.
• An estate plan allows you to nominate the person you want to care for and raise any surviving minor children.
• Finally, although there are no spousal benefits for GLBT couples (compared to those of heterosexual married couples) proper estate planning will ensure correct strategies are used to avoid penalties, extra taxation when possible, and the court and excessive attorney costs of Estate Administration.