Important Estate Planning Considerations for LGBTQ+ Couples

Estate planning is for everyone. Regardless of your economic status, age, race, gender, or sexual orientation, properly protecting your future and your loved ones requires careful thought. For LGBTQ+ couples and families, this planning can be especially critical.  Each couple is unique, and it is our goal to ensure that your personal wishes are carried out and that no one else is dictating what should happen with your money, property, or children.

Marriage

The 2015 US Supreme Court ruling legalizing same-sex marriage created new planning opportunities for gay and lesbian couples who married to benefit from estate planning techniques that were previously unavailable to them.  However, some couples mistakenly assume that the ruling resolved all related issues.  While married LGBTQ+ individuals have more options to protect their interest due to illness, incapacity or death, an intentional, legally documented estate plan is still critical to ensure wishes are followed – even though the estate planning documents can thankfully now be drafted the same way they would be for a heterosexual couple.

Some long-term couples are either undecided on or uninterested in marriage.  While there are a lot of emotions behind marriage, there are also estate planning and tax considerations. Depending on your situation, we can sit down and make sure that your estate plan is drafted in such a way that ensures all of your wishes—personal and financial—will be carried out, whether you choose to marry or not.

Existing Estate Planning

There are additional estate planning challenges for LGBTQ+ couples who entered into legal unions before same-sex marriage was recognized.  If your estate planning documents were signed prior to same-sex marriage being recognized nationally in 2015, it is crucial to have a qualified estate planning attorney review them to see if changes in the law mean it makes sense to update decisions. This recognition opened new planning opportunities that may not have been available to you in prior years if you and your partner are now married.

It is also important to note that before same-sex marriage was legally recognized, life partners could leave each other whatever portion of their estate they wanted.  Once married, same-sex spouses, like all spouses, must now be aware of state laws limiting the extent to which assets can be distributed to anyone other than a spouse unless there is a premarital agreement in place.  The restrictions change based on whether you have no children, joint children, or separate children.

Children

If you have biological or adopted children, you will need to name someone to take care of them should something happen to you. This is especially important if your partner is not the children’s legal parent. Without the proper appointment, the court could end up placing your children with someone you would not have chosen. Alternatively, if you would like to provide for your partner’s children, but you have not adopted them, you will need to make sure that your will or trust specifically states what you would like the children to receive since they would not be entitled to anything under intestate statutes.

Your “Family”

Absent estate planning executed by you, state law will fill in the gaps by defaulting to your spouse or blood relatives. For some unmarried individuals, these could be the last individuals you want acting on your behalf or receiving your money and property. If you and your partner are not married and do not plan to get married, you will need to make sure that your estate planning specifically appoints them to the roles (e.g., personal representative, trustee, agent under a power of attorney, or patient advocate under a medical power of attorney) you want them to have and designate what your partner is to receive at your death. If you have good friends that you consider to be your family or causes that are close to your heart, you will need to have an executed estate plan to protect and provide for your true “family,” whether or not they are blood relatives.

Reducing Conflict

If you are estranged from your family, proper planning can ensure that they will have little or no involvement in your affairs after your death, reducing the possibility of contests. This can be done by using a trust to distribute your money and property so that there is no court involvement and only those named in the trust have access to the necessary information, by explicitly stating in your will which family members are to receive nothing, and by including no-contest provisions in your documents.

Littleton Legal is here to help same-sex couples navigate these sensitive issues. Estate planning can provide you with the peace of mind that comes with knowing that your wishes will be carried out in the way you want upon your incapacity and after you are gone. Please give us a call so we can schedule an appointment to get you on the path toward protecting yourself and your loved ones.