LGBTQ+ Estate Planning

Estate planning is a critical process for everyone, but it carries unique significance for LGBTQ+ individuals and couples. The legal landscape remains complex and sometimes hostile, making it essential to proactively protect assets, healthcare decisions, and caregiving arrangements. This comprehensive guide outlines the vital steps and considerations for LGBTQ+ estate planning, ensuring that your wishes are respected and your loved ones are protected.

The Importance of Estate Planning for LGBTQ+ Individuals

Despite the landmark Supreme Court decision in 2015 legalizing same-sex marriage nationwide, many LGBTQ+ individuals still face significant challenges in retirement and estate planning. 

Discrimination and lack of legal recognition in some states mean that estate planning for LGBTQ+ persons is not always straightforward. Proper planning helps to overcome these obstacles, ensuring that partners and families of choice are protected.

Key Estate Planning Documents

For LGBTQ+ individuals and couples, having the right legal documents in place is crucial. The essential documents include:

  1. Last Will and Testament: This document specifies how your assets should be distributed after your death. It is vital to clearly outline your wishes to prevent disputes and ensure that your partner and chosen beneficiaries are taken care of.
  2. Living Trust: A living trust can help manage your assets during your lifetime and facilitate their transfer after your death, bypassing probate and ensuring privacy.
  3. Power of Attorney: This document grants a trusted person the authority to make financial decisions on your behalf if you become incapacitated. For LGBTQ+ couples, it is crucial to ensure that your partner has this authority.
  4. Healthcare Advanced Directive: Also known as a living Will, this document outlines your wishes regarding medical treatment if you are unable to communicate them. It can prevent family disputes and ensure that your partner makes decisions in line with your preferences.
  5. Designation of Healthcare Surrogate: This allows you to designate a person, typically your partner, to make healthcare decisions on your behalf.
  6. Declaration of Pre-Need Guardian: This document lets you specify who should be your guardian if a court determines you need one. This is particularly important for LGBTQ+ individuals to ensure that a supportive person, rather than a potentially hostile family member, is appointed.

Overcoming Legal and Social Challenges

LGBTQ+ individuals often face unique challenges due to discriminatory laws and social stigma. Proactively addressing these issues in your estate plan can help mitigate their impact:

  • Bulletproofing Estate Plans: Given the potential for hostile family members to challenge your wishes, it is wise to “bulletproof” your estate planning documents. This can include adding no-contest clauses that penalize challenges to your Will or trust.
  • Higher Healthcare and Caregiving Costs: LGBTQ+ individuals should plan for potentially higher healthcare and caregiving costs in their senior years. This includes finding supportive healthcare providers and long-term care facilities that respect LGBTQ+ identities.
  • Family of Choice: Many LGBTQ+ individuals rely on a family of choice rather than biological family members for support. Legal documents such as powers of attorney and healthcare surrogates should reflect these relationships to ensure your chosen family can act on your behalf.

Special Considerations for Unmarried Couples

Unmarried same-sex couples face additional challenges, as they do not benefit from the legal protections afforded to married couples. It is even more critical for these couples to have comprehensive estate plans that include all necessary documents to protect each other.

  • Wills and Trusts: Ensure that your partner is clearly named as a beneficiary in your Will or trust.
  • Healthcare and Financial Powers of Attorney: These documents are essential to grant your partner decision-making authority in case of incapacity.
  • Pre-Need Guardian Declarations: Specify your partner as your preferred guardian to prevent courts from appointing someone else.

Legal Mistakes LGBTQ+ Couples and Families Should Avoid

The law regarding the legal rights of LGBTQ+ Texans is continually evolving, and it’s important to get the right legal advice to know how to protect yourself and your family. Here are three (of the many) legal mistakes that 

LGBTQ+ couples and families should never make:

  1. Assuming Marriage Equality Eliminates the Need for Estate Planning: One of the biggest mistakes LGBTQ+ couples make is assuming that they don’t need a Will, powers of attorney, or other legal planning now that marriage equality is in place. WRONG! Your spouse may have legal standing, but nothing is automatic when it comes to your estate or medical decisions. It is even more important now to have your legal documents in place to deal with potential hostility from financial institutions, medical facilities, or even courts.
  2. Using Inadequate Online Services: Another huge mistake is trying to do this vital planning online or with attorneys not familiar with the specific needs of the LGBTQ+ community. Online services and even some attorneys may only recommend very basic planning, which is insufficient for couples and families with limited legal recognition.
  3. Misunderstanding Parental Rights: Believing that being named on a birth certificate establishes a legal parental relationship is incorrect. In Texas, putting a partner or spouse on a birth certificate does not provide guardianship for the child if the birth parent passes away. Legal planning such as adoptions and Wills with guardianship provisions must be in place to protect the surviving non-birth parent.

Protecting LGBTQ+ Children Through Estate Planning

Being a parent brings special responsibilities, and being a parent to an LGBTQ+ child heightens the awareness of how critical it is to protect them in ways other parents might not imagine. Here are five ways parents can protect their LGBTQ+ children through estate planning:

  1. Name a Guardian: Establish a Will that appoints a succession of guardians who will protect and honor your child. Exclude unsupportive family members to prevent them 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. Ensure they have powers of attorney in place to maintain advocacy in case of an emergency.
  3. The Privacy of a Living Trust: A living trust keeps your information private and outside the approval of the court. It can also help defend against family challenges to your estate plan by demonstrating acknowledgment of your relationship.
  4. Choose Affirming Executors, Guardians, and Fiduciaries: Select individuals who will respect your LGBTQ+ children to handle decisions about finances, assets, and medical matters.
  5. Choose Affirming Professionals: Ensure that your child will work with professionals who treat them with respect and dignity. This includes lawyers, CPAs, and financial planners who understand and support LGBTQ+ identities.

Will Your Family Be Prepared?

Planning for the Future

To ensure your estate plan remains effective, it should be regularly reviewed and updated, especially if you move to a state with different laws or your personal circumstances change. Additionally, consider discussing your plans with a knowledgeable estate planning attorney who understands the unique needs of the LGBTQ+ community.

Estate planning for LGBTQ+ individuals and couples requires careful consideration and proactive measures to address unique legal and social challenges. By securing essential documents and planning for potential obstacles, you can ensure that your wishes are respected and your loved ones are protected. With a robust estate plan, you can achieve peace of mind and focus on enjoying life with the confidence that your future is secure.

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Burch Law
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