Estate Planning in the LGBTQIA+ Community: Are There Differences?
August 23rd, 2021
Since the 2015 recognition of same-sex marriage being constitutionally protected, same-sex couples who are married have been able to enjoy the same rights as heterosexual couples when it comes to estate planning. But for unmarried couples, careful planning is especially important. Of course, no matter how you identify, estate planning is crucial to protect your loved ones. But in the LGBTQIA+ community, estate planning can legally protect against discrimination even if others are reluctant to recognize your non-marital relationship and your desire to permit your partner to make decisions for your care should you become unable to.
In 2015, the United States Supreme Court case of Obergefell v. Hodges made it a fundamental constitutional right to marry, including for same-sex couples. The US Supreme Court's decision to recognize same-sex marriages opens up many previously unavailable legal tools and tax savings that had been available only to "traditional" legally recognized marriages. Although non-marriage alternatives will not result in the federal government's recognition of the relationship, the Supreme Court ruling in Obergefell further stated that a valid same-sex marriage in one state must be recognized in all states.
A married same-sex couple with proper estate planning will receive all state and federal benefits of marriage including those right and benefits related to estate planning. Federal benefits include the unlimited marital deduction for federal estate and gift taxes. And at the state level, the spouse is the presumptive decision-maker for medical decisions when no planning is in place. As I have counseled many clients, with marriage comes a bundle of rights. After the Obergefell decision, these rights are now also available to same-sex married couples.
Whether same-sex or not, however, some couples choose not to marry. Non-marriage alternatives include adults in domestic partnerships and civil unions, which are not legally recognized as marriage, and those who just live together. However, these couples can still obtain some of the partnership decision-making privileges and benefits that a married couple has. But to do so requires a different type of planning. However your partnership is characterized, creating a legal framework to protect yourself and your partner is possible, particularly for members of the LGBTQIA community.
Planning for Incapacity
No matter the type of relationship, a revocable living trust permits a couple to nominate each other as trustee, allowing the spouse or partner to manage their loved one's financial affairs (for assets transferred to a trust) if they become incapacitated. A durable financial power of attorney is another solution to manage the affairs of a loved one if they become incapacitated. The rules and requirements of a durable financial power of attorney vary from state to state, so it is necessary to review and reconfigure this document if you relocate.
The person you name as your agent need not be a spouse. However, if any animosity exists with your extended family about your relationship and whom you prefer to act on your behalf if you are incapacitated, it is essential that you have the proper planning in place.
When you are completing planning, a medical power of attorney or health care surrogate designation is also a crucial piece of your plan. It is imperative to also include a HIPAA privacy authorization form for your health care power of attorney/surrogate. This allows your medical and healthcare professionals to disclose pertinent health information and medical records to your named agent. Without it, it is possible that a partner you're not married to will not be able to talk to your doctors. Further, having that medical power of attorney in place can also prevent biological family attempts to interfere with a partner's ability to make medical decisions for you.
In addition to appointing an agent and authorizing your medical providers to talk to your agent or loved ones, a living will is another essential piece of your estate plan. Your living will directs your doctor and family about the type of end-of-life care you do – or do not – want. Again, especially if there is any animosity from your family about your spouse or partner, making sure these wishes are in writing is the best way to keep things as smooth for your spouse or partner as possible should something happen to you.
The Importance of Planning for Minor Children for the LGBTQIA+ Community
When a same-sex couple has children, working with a family law attorney is crucial to make sure both parents are legal guardians of the kids when any children are not the biological children of either or both parents. And if something were to happen to both parents, having the pre-need designation of future guardians is especially important. This allows the parents to name, in advance, whom they would want to be appointed as their children's guardian. McCreary Law Office offers a separate planning tool specifically for parents of young children to make sure your wishes are in place. If your children lost their parents, the last thing we would want to add would be a custody battles among family members.
Unintended Marriages in the LGBTQIA+ Community?
It is also essential to address any previous LGBTQIA+ committed relationship structures before finalizing your estate plan to tie up any loose ends. It is possible that some people are married to each other and do not realize it. For example, if two Texas same-sex residents married in Vermont before 2015, understanding the marriage was not recognized in Texas then, but split up after 2015, they may not have realized they needed to go through divorce proceedings because after Obergefell, that marriage was then recognized in Texas. It is also possible that a civil union o domestic partnership was converted to a marriage. Counsel with a family law attorney is an important part of your plan.
Specific issues unique to the LGBTQIA+ community can potentially make planning more complex or at the very least mean that planning should be done with careful attention to detain. McCreary Law Office approaches all matters with that attention to detail. I would be happy to meet with you to discuss how you can properly document your wishes regarding the inheritance of your property, who can make decisions for you if you're unable to, and who would care for your children should the need arise. Please contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600.