5 Ways Parents of LGBTQ+ Kids Can Protect Through Estate Planning

By Lorie L. Burch, Owner and Founding Attorney of Burch Law

Being a parent brings special responsibilities. Being a parent to an LGBTQ child brings even heightened awareness of how critical it is to protect them in ways that other parents would never imagine. I’ve always said that the actual planning for the LGBTQ community isn’t necessarily very different, but the consequences of NOT having planning is what is so gravely perilous. Here are 5 ways parents of LGBTQ children can protect them through estate planning:

  1. Name a Guardian. There is perhaps nothing more frightening than the thought of your gay, trans, queer, or non-binary child being turned over into foster care and having the state appoint a guardian they deem to be “in their best interests.” Parents should establish a Will that appoints a succession of guardians who will protect and honor their child. Additionally, parents may want to go a step further and purposely exclude certain unsupportive family members from being chosen as guardians.
  2. Powers of Attorney for 18 year-olds. Once your child turns 18, you no longer have rights to make medical or financial decisions for them. You will also be unable to receive any medical information in case of an emergency. It’s vital that you are able to keep being their advocate in the event something happens and that they have back-ups to you, such as family or friends, who will respect their identity.
  3. The Privacy of a Living Trust. While having a Will is a critical and foundational piece of planning, it will still become a public record upon your death. This could expose more of your family dynamics and assets than you want and leaves everything under the approval of an elected judge. Opting for a living trust instead to distribute your money and assets is a way to keep all your information private and outside the approval of the State of Texas, as a living trust is not subject to a public probate court process.

    Also, if you are concerned about family challenges to your relationship, a revocable living trust can be a great tool to defend such challenges. Here’s how: when you create a trust, you should open a bank account in the name of the trust. Then, write checks here and there as gifts (such as for birthdays, graduations, holidays, etc) to family members you believe may cause problems. If they cash the checks, they have indirectly acknowledged the validity of your relationship and your estate plan, and that will make it extremely difficult to challenge later on.

  4. Choose affirming Executors, Guardians and Fiduciaries. If you don’t establish your own executor, trustee, guardians, or medical and financial powers of attorney agents, then you are leaving it to the State of Texas to choose for you. Not only will that cause a lot of extra delays and money, but will Texas pick people who will be affirming of your LGBTQ children? If your kids are too young to make these decisions for you, then you want to ensure that the people who you are selecting to handle decisions about finances, assets, funeral, medical matters on your behalf will respect your children…the very ones whom their decisions will impact the most.
  5. Choose affirming Professionals. I once had a straight couple say in an initial meeting that they specifically chose our firm because we have an LGBTQ focus. They went onto to explain that it was because their daughter is gay and they wanted to make sure that as their Executor, she would work with a law firm that would respectful and treat her with dignity. That really struck me and made me realize how important it is for parents to choose professionals with the same criteria, whether it’s lawyers, CPAs, or financial planners, it will make such a difference to your LGBTQ children if they know they can work with someone who will treat them with equal respect and care, and who won’t use dead names or misgender them.

This list could be 100 ways, frankly, but these are 5 critical ways to protect our LGBTQ kids NOW.

Contact us for more information.

Burch Law
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