Throughout much of our country’s history, the LGBTQ community has been forced to diligently fight to be afforded the same securities heterosexual couples are guaranteed. And sadly, without proper LGBT Estate Planning, that fight can continue even after death. While some progress has been made in recent years, the simple fact is this: same-sex couples must continue to be conscientious and thoughtful when it comes to their Estate Planning efforts.
At Trust & Will, we know that estate planning is one of the most important tools to help families plan for the future. Having an estate plan in place helps make sure that you are taking steps so that your loved ones can continue to build on your legacy.
Even with simple estates, Estate Planning can be confusing and convoluted. Add in the additional unknowns, legal complexities and battles that members of the LGBTQ+ community face in today’s world, Estate Planning can seem even more daunting.
Below are 6 tips to know while you’re creating LGBTQ+ Wills, Trusts and other components of an Estate Plan.
Tip 1: Legally naming your partner or spouse is essential
Even if you’re legally married, if you want your partner or spouse to have the authority to be able to make decisions for you, whether those are financial or medical, you should specifically name them in one of the many Estate Planning documents out there:
- Durable Financial Power of Attorney (POA) – Authorizes someone to make decisions regarding your financial affairs if you’re incapacitated or unavailable to make them for yourself.
- Living Will – Also sometimes referred to as an Advanced Healthcare Directive, a Living Will explicitly states your end-of-life care wishes should you ever be incapacitated and unable to express them on your own.
- Medical Power of Attorney (POA) – This document gives authority to another person (for LGBT couples, it’s often a partner or spouse) to make any and all medical decisions for you if you’re unable to do so.
- HIPAA – Essential for LGBTQ+couples, the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA) privacy authorization form gives doctors and healthcare providers consent to discuss and disclose your health condition and records with the person you designate. This authorization can be incredibly important should medical records ever be needed to confirm or establish mental capacity or medical condition after your passing in order to execute your wishes.
Tip 2: Same sex marriage, domestic partnership, and civil union are not the same
It’s important to understand that guaranteed benefits and rights for same-sex or LGBTQ+ couples can widely differ depending on local state laws. Be sure you understand and know what you and your partner are entitled to under the law. This is especially important if you’re legally married in one state but move to another. Updating your Estate Plan to reflect the laws of your new home may be necessary.
Tip 3: Proper Estate Planning can offer many benefits
In addition to protecting your spouse or partner, an Estate Plan can offer other financial benefits as well. For example, Estate Plans can help you avoid probate, potentially give tax advantages and, if using the right legal vehicle, may even offer you legal and creditor asset protection.
Tip 4: Ensuring your children go to your partner means appointing guardianship
If you share children, this may be one of the single most essential components that Estate Planning for LGBTQ couples must address. It’s not uncommon for courts to step in and make decisions about guardianship for children. And often, the family of origin or another biological parent will be given preference. If you share a child, you can avoid any misinterpretations about who should step in by formally nominating your spouse or partner to be legal guardian of any children if you pass away or become incapacitated.
Tip 5: Much of a properly-prepared Estate Plan will remain confidential
Other than your Will, which becomes public record, most of your Estate Plan is private. This would include any Powers of Attorney (POA) you set up – both medical and financial – as well as your Revocable Living Trust. The power of privacy can be a blessing.
Tip 6: Failing to plan can be planning to fail for same-sex couples
Unfortunately, if you live in a state that does not recognize same-sex relationships or partnerships, when you pass away, without proper Estate Planning documents in effect, you will have died intestate. This means that if you pass away, your partner may not be legally entitled to anything – this could include bank accounts, property, children, retirement accounts and other assets. The only way to fully ensure your family is protected is by having an Estate Plan clearly defined.
Patrick Hicks is Head of Legal at Trust & Will, serving as their General Counsel overseeing all attorney-related operations, including regulatory efforts and legal affairs.