Estate Planning for LGBTQ+ Couples: Overcoming Legal Challenges

Everyone needs an estate plan, but estate planning for LGBTQ+ families may be even more necessary. Although same-sex marriage is now recognized in all 50 states, discrimination and opposition still exist at the family, cultural, and political levels creating distinct difficulties for both married and unmarried same-sex couples. Family members or relatives who are opposed to your relationship or marriage are more unlikely to honor your future wishes should you become incapacitated or pass away. Custody battles could result in non-biological children in the case of the biological parent's death or incapacitation. LGBTQ+ inclusive estate planning can protect you and your family.

If you’re unmarried and you become incapacitated or pass away without any estate planning in place, your partner would have no rights and would be left vulnerable to potential risks such as unsupportive family interfering or attempting to stop them from making medical decisions on your behalf or blocking them from seeing you if you require hospitalization. Additionally, your family members could attempt to evict your partner out of your shared home. Remember there are LGBTQ+ legal protections in estate planning.

Here are some important tips to ensure you and your partner’s wishes are respected and you are both protected in the case of incapacitation or death.

Plan for Incapacitation:

• Living Will:

A living will, not the same as a last will and testament, is a legal document that clearly details your wishes if you were to become incapacitated. It details medical treatments you want and do not want to be used to keep you alive as well as other medical decisions such as pain management or organ donation. By expressing your end-of-life wishes via a living will, you are establishing your choices ahead of time. Don’t risk leaving these decisions to family members who may not agree with your choices.

LGBTQ+ Estate Planning and Power of Attorney (POA)

Even if you’re legally married, it is still important to specifically name your spouse if you want them to have the authority to make medical or financial decisions for you. There are several important estate planning documents that will cover this for you.

• Financial Power of Attorney (POA)

A financial power of attorney (POA) lets you authorize someone, presumably your partner, to make decisions regarding your financial matters should you become incapacitated due to illness or accident. You can authorize your financial POA to do a variety of financial tasks, such as paying your bills, handling your real estate matters, investing, paying your taxes, operating your small business, and so on. You can give your agent as little or as much authority as you wish. However, without a POA, a guardianship (or conservatorship) court proceeding would be required if you become incapacitated. LGBTQ+ financial planning for end of life is a necessity.

• Medical Power of Attorney (POA)/Healthcare Proxy:

If you become incapacitated your medical POA, also known as your healthcare proxy, is someone who you trust to fulfill your medical or end-of-life decisions. This can be crucial because often same-sex couples experiencing opposition from family members may get excluded from making critical health care decisions regarding their partner. To avoid this scenario, consider appointing your partner to be your healthcare proxy in case you become incapacitated.

Appoint Child Guardianship

If you share children, this is possibly the most essential factor to address when estate planning with your partner. When it comes to children LGBTQ+ couples often have to deal with potentially difficult legal issues, especially when it comes to planning for the future. For example, in the LGBTQ+ community it is common for one parent to be the biological parent and one to be the adoptive parent where the child and/or other parent may not share full legal familial rights. It’s not uncommon for courts to step in and make decisions about guardianship for children and often, preference will be given to the family of origin or another biological parent. Formally nominating your spouse or partner to be legal guardian of any children you share will help avoid confusion about who you would want to step in and raise your children if you should pass away or become incapacitated.

The Power of Privacy

The power of privacy can be a blessing for an LGBTQ+ family. The amount of privacy you control over your estate depends on the primary estate planning tool you choose. Some people choose a will and others choose a trust. A will becomes public because it requires probate, a public court proceeding. A trust, however, remains private during your life and after your death. If privacy is important to you and your family, consider using a trust as a way of enhancing privacy and achieving other estate planning goals, as well.

The modern family dynamic is constantly changing. Fortunately, estate planning, when done properly, can accommodate those changes. Please call us to set up your estate plan and protect your family.

About the Author

Leslie Sultan Esq.

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).