LGBTQ Estate Planning: Protect Your Assets Now

The exclusion of common law spouses from the legal rights and protections granted to married couples can have a significant impact on estate planning for LGBTQ+ couples. Without legal recognition, common law partners may face challenges in accessing the estate of their deceased partner, resulting in probate and guardianship complications. To mitigate these challenges, proper estate planning is essential, allowing common law couples to establish legal protections for each other, such as power of attorney, beneficiary designations, and healthcare decisions. By doing so, common law couples within the LGBTQ+ community can ensure the proper distribution of assets and the protection of their chosen family members.

Key Considerations in LGBTQ+ Estate Planning



When it comes to estate planning, the LGBTQ+ community should pay particular attention to several key considerations. These include updating beneficiary designations to ensure loved ones, including chosen family members, are properly recognized, establishing powers of attorney for healthcare decisions and financial affairs, and designating guardianship for children within same-sex couples. By addressing these considerations through comprehensive estate planning documents, LGBTQ+ individuals can ensure the protection of their assets, the proper care of their loved ones, and the alignment of healthcare decisions with personal wishes.

Role of a Legally Named Partner

A legally recognized partner or spouse plays a crucial role in estate planning for LGBTQ+ individuals. Legal recognition, such as marriage, offers default protections for spouses, including the ability to make healthcare decisions, access financial accounts, and inherit assets. However, it is important to note that estate planning documents, such as powers of attorney and beneficiary designations, are still necessary to address the unique needs and circumstances of LGBTQ+ couples. By properly documenting their intentions and wishes, LGBTQ+ couples can ensure that their estate plan aligns with their personal preferences and provides the legal protections they desire for their chosen family members.

Same-Sex Marriage, Domestic Partnership, and Civil Union

Understanding the legal differences between same-sex marriage, domestic partnership, and civil union is essential for LGBTQ+ couples when it comes to estate planning. While these legal relationship statuses may offer some degree of legal recognition, the specific rights, protections, and responsibilities associated with each may vary depending on state or country laws. Same-sex marriage, for example, provides the most extensive legal protections, including default inheritance rights, automatic power of attorney, and healthcare decision-making authority. Conversely, domestic partnership or civil union may offer limited legal recognition, necessitating comprehensive estate planning documents to ensure the proper protection of assets and the care of chosen family members.

Benefits of Proper Estate Planning

Proper estate planning offers numerous benefits for the LGBTQ+ community. It allows individuals to have control over their healthcare decisions, providing the means to appoint powers of attorney for medical care and financial decisions. Additionally, estate planning documents, such as a revocable living trust, can help avoid probate and intestacy challenges, ensuring the efficient distribution of assets and the protection of chosen family members.

Appointing Guardianship for Children in Same-Sex Couples

When it comes to estate planning, same-sex couples with children must prioritize the appointment of guardianship. Appointing guardians ensures a clear plan for the care and well-being of their children in the event of their incapacity or passing. Here are some key considerations:

• Appointing guardianship in estate planning documents provides legal recognition of the chosen family members responsible for the care of the children.
• Estate planning documents can prevent disputes and legal challenges regarding the custody of children within the LGBTQ+ community.
• Designating guardianship allows same-sex couples to ensure that the biological parent of the child is recognized and involved in the decision-making process.

Confidentiality in LGBTQ+ Estate Planning

Confidentiality is a vital aspect of estate planning for individuals within the LGBTQ+ community. Here are some reasons why confidentiality matters:

• Estate planning documents contain personal information, including financial details, healthcare decisions, and family dynamics, which should be kept confidential.
• Confidentiality ensures that personal information of LGBTQ+ individuals, chosen family members, and any potential beneficiaries is protected from third parties.
• By maintaining confidentiality, estate planning documents can preserve the privacy of the LGBTQ+ community, preventing the disclosure of personal affairs to unwanted individuals or entities.
• Confidentiality within estate planning allows LGBTQ+ individuals to control the dissemination of information, ensuring that it only reaches the intended parties, such as chosen family members, legal representatives, and healthcare providers.

Risks of Failing to Plan for Same-Sex Couples

Failing to engage in estate planning can expose same-sex couples to various risks. Here are some of the potential consequences of not having an estate plan:

• Intestacy: Without an estate plan, the state's intestacy laws will determine the distribution of the couple's assets, which may not align with their personal wishes or provide for chosen family members.
• Probate Challenges: The absence of an estate plan can result in probate challenges, leading to legal disputes, delays, and added emotional stress for the surviving partner and chosen family members.
• Inadequate Legal Protections: Failing to plan may leave same-sex couples without the legal protections and benefits afforded to married couples, such as default inheritance rights, power of attorney, and healthcare decision-making authority.

Choosing the Right Estate Plan for LGBTQ+

Choosing the right estate plan is essential for LGBTQ+ individuals to ensure that their unique needs and circumstances are properly addressed. Here are some factors to consider when selecting an estate plan:

• State Law and Legal Protections: LGBTQ+ individuals should assess the legal climate in their state, understanding the legal protections available to them and their chosen family members.
• Family Dynamics: Consider the dynamics of chosen family members, biological family members, and the role each will play in your estate plan.
• Subject Matter: Take into account the subject matter of estate planning, such as healthcare decisions, financial power of attorney, revocable living trust, retirement accounts, life insurance, and the care of dependents.

Frequently Asked Questions

1. What is intestacy and why is it important to have an estate plan in place?

Intestacy refers to the legal distribution of a person's assets when they pass away without a valid will or estate plan. For LGBTQ+ individuals, intestacy laws may not align with their personal wishes or provide for chosen family members. By having an estate plan in place, they can ensure that their assets are distributed according to their desires and that their chosen family members are taken care of.

2. How can the absence of an estate plan lead to probate challenges?

When there is no estate plan in place, the distribution of assets may be subject to probate proceedings. Without clear instructions in a will or trust, disputes can arise among family members and loved ones regarding who should inherit what. This can lead to lengthy and costly legal battles that can strain relationships and deplete the estate's value. Having a comprehensive estate plan helps minimize the likelihood of probate challenges by clearly outlining your wishes and intentions.

3. What are some important considerations for healthcare decision-making?

For LGBTQ+ individuals, healthcare decision-making authority is crucial, especially in cases where biological family members might not respect their wishes or recognize their chosen family. It is important to designate a healthcare proxy or power of attorney who understands and supports their healthcare preferences, including end-of-life decisions, medical treatments, and the use of life-sustaining measures. This ensures that their wishes are upheld even if they are unable to communicate them personally.

4. How can a trust be used in LGBTQ estate planning?



A trust can be used in LGBTQ estate planning to ensure that assets are protected and distributed according to the individual's wishes. It can provide a mechanism for managing finances, protecting the interests of a partner or family, and avoiding potential legal complications or disputes.