LGBTQ+ Couples and Estate Planning

The legal landscape for the LGBTQ+ community is becoming more uncertain as we close another Pride Month. Many are concerned that the Supreme Court’s decision to overturn Roe ending the constitutional right of abortion, is threatening other rights, particularly those of same-gender couples.

Legal professionals warn that Roe being overturned, the Supreme Court’s Republican majority could make landmark LGBTQ-rights decisions next. This includes marriage equality, as established in Obergefell. Gay couples must make sure their estate plans are reviewed and updated by an estate planning attorney who understands the unique needs of LGBTQ+ planning.

While we will need to wait to see if the Supreme Court rules on marriage equality, the Supreme Court can still decide it. However, same-gender couples can take proactive estate planning steps to ensure that their relationships are protected to the full extent of the law.

You should consult with us to discuss your particular circumstances. Here are some answers to frequently asked questions about LGBTQ+ estate planning.

1. I am married to my partner, but we are registered as domestic partners in this state.  Are we eligible for the same rights as married couples?
2. No, domestic partnerships, civil unions, and other legal alternatives to marriage offer only rights and protections in states that recognize them.  The federal government only recognizes marriage.

Additionally, rights and protections provided by domestic partnerships or civil unions may vary from one state to the next. For example, in some states, property rights between domestic partners and civil unions are not affected by civil unions. In other states, however, they are recognized.

Marriage is the only way to get all the protections and rights that come with your relationship recognized by the federal government.

You can still enjoy the many benefits of marriage by creating a comprehensive estate plan. This is what we call a Life & Legacy Planning Process. Give us a call to discuss how we can help you get the right legal documents and plans in place for your partner.

1. Although we have lived together for ten years, our relationship is not legally binding. Neither my partner nor I have a wills. We also don’t have any of the other documents included in an estate plan. What happens if my partner becomes incapacitated or dies?
2. If you’re not married and your partner dies, your partner’s assets will be divided among their surviving heirs according to your state’s intestate succession laws. These laws only apply to your partner’s relatives, and you would not be able to inherit any assets from your partner.

This could lead to devastating consequences if it is not addressed immediately. If your partner dies and you are not listed on the deed of a home you shared, you may be left homeless if the family member who inherits that house decides to kick you out.

In the same way, if your partner becomes incapacitated, you will not be able to make any medical decisions for them, nor can you access financial accounts that are only in their name. Family members could prevent you from visiting your partner at the hospital.

These facts are important to consider if you’re in an unmarried relationship. If you wish your partner to inherit your assets or have any control over how your finances and healthcare are managed in the case of your incapacity, you should contact us to schedule a Family Legacy Planning Session.

1. Which types of estate planning tools are used to create an effective incapacity strategy for LGBTQ+ couples or unmarried couples?
2. Estate planning doesn’t only concern planning for your death but also planning for your incapacity if you are seriously injured or unable to care for yourself. You can create an incapacity plan that allows you to name the person or persons you want to make your financial, legal, and healthcare decisions if you’re unable to make those decisions yourself.

If you don’t have a plan for incapacity or death, the court can appoint a legal representative to make these decisions for you. If you’re not married and the court names one of your family members as your guardian, they could remove your partner from the medical decision-making process and even deprive him or her of the right to visit you at the hospital. Even if you’re married, it is not certain that your spouse would be able to make these decisions.

Although the court will usually prioritize spouses over guardians, this may not always be the case, particularly if family members aren’t supportive. You must give your spouse/partner the legal authority to make these decisions using durable financial and medical power of attorney.

If you are unable or incapable of making your own healthcare decisions, medical power of attorney allows you to give your spouse/partner the ability to make them. A durable financial power gives your spouse/partner the ability to manage your financial and legal affairs. This includes paying your bills and taxes, managing your investments, and selling your house.

You should also make a living will so your spouse/partner can know how your medical care will be handled if you become incapacitated, especially at the end. Don’t forget to give your spouse/partner HIPAA authorization in the medical power of attorney. This will allow them to access your medical records and make informed decisions about your medical treatment.

Fleurinord Law PLLC will help you to create a solid estate plan. This will ensure your spouse/partner has all the rights they need in case you become incapacitated by an accident or illness.

1. I am married to my partner, and we each have a will. Is this enough planning?
2. A will is integral to almost every adult’s estate planning. However, you and your spouse should consider also having a trust to protect your loved ones from the courtroom if you become incapacitated or die.

If you become incapacitated, a will is not sufficient because it only becomes effective upon your death.  If you are incapacitated and have no will, your spouse might be unable to pay their bills or may even have to move out of your home.

Additionally, probate is a lengthy and costly court process that can be expensive, time-consuming, and conflict-ridden. Assets properly titled under the trusted name would be passed directly to your spouse on your death without any probate or court intervention.

Avoiding court is particularly important if your family doesn’t support your relationship. Family members who don’t support your relationship are more likely than others to contest your will in probate. Your spouse may not be able to receive assets that you have left in your will if your will is successfully contested. For your spouse, contesting a will can be time-consuming, expensive, and emotionally draining.

Last, an attorney will not usually create a will to protect your assets from creditors or lawsuits. Your spouse could control and protect your assets from creditors, future relationships, or unexpected lawsuits.

1. How can I ensure my partner, whom I an not legally married to, can carry out my funeral arrangements?
2. To ensure that your partner can legally manage your funeral arrangements, you must create a funeral directive (also known as a disposition or remains directive). You can include this directive in your will or as a separate document.

State law, absent any estate planning, dictates who can dispose of your remains and manage your funeral. If you are not married, this authority will be given to your surviving relatives. A properly written funeral directive allows LGTBQ+ partners to opt out of this default and names the person who will be responsible for your final arrangements.

1. How can the LGTBQ+ non-biological parent gain parental rights?
2. Many legal experts recommend that same-gender couples adopt a second parent to ensure they have all the rights of a biological parent. It can be very difficult for couples of the same gender to adopt in some states. Some states allow employees of state-licensed agencies for adoption to refuse to grant an adoptive order if they believe the act is against their religious beliefs. This legal discrimination will likely continue, given the Supreme Court’s recent conservative majority and the Roe-v Wade decision.

We can offer some protection to non-biological parents of the same gender using various estate planning strategies. Our Protection Plan for Minor Kids allows LGBTQ+ couples to nominate the non-biological parent as the child’s legal guardian. This can be done for both the short-term and long-term. This allows the court to do what the parent would want and place the child with the non-biological parent if the other biological parent is unable to care for the child or passes away.

Advocate for LGTBQ+ Rights

In these uncertain times, LGBTQ+ couples with children having an estate plan that is more important than ever. This should be prepared by an experienced lawyer who has dealt with these issues. Avoid using online document services to prevent unintended consequences.  Fleurinord Law can help you create an estate plan specifically tailored to protect you and your spouse/partner from any potential court challenges from family members who don’t agree with your relationship.

Our Family Legacy Planning Process will ensure that your loved ones are protected and cared for no matter what. Get in touch with us today at 888-904-2297 to find out more and start the process.