Estate planning presents unique challenges for those in the LGBTQ community, despite the nationwide legalization of same-sex marriage in 2015.
Although the law now recognizes marriages regardless of orientation, numerous challenges and complexities persist for the LGBTQ community. That’s especially the case for unmarried partners.
The good news is that through proper estate planning, members of the LGBTQ community can retain control over who receives their assets and manages their affairs.
Regardless of your state’s laws, if you have family members who disapprove of your identity or your relationships, your estate planning documents can prevent them from controlling your assets, making medical decisions for you or inheriting from your estate, depending on your preferences.
Even though the law now recognizes marriage equality, many LGBTQ couples find they need a highly customized plan that meets the needs of their unique situation. For example, if the extended family members of one or both spouses are unsupportive of the relationship, the couple may wish to have the additional privacy that a revocable living trust can provide.
Estate planning is especially critical for unmarried LGBTQ couples. If you lack a valid estate plan and are not married to your partner, no matter how long you’ve been together, state laws will consider you to be legal strangers. You normally will not have any rights to inherit property from each other unless you have an estate plan. If they lack the properly drafted documents, unmarried partners won’t have rights to hospital visits and medical information or the ability to make decisions on their partner’s behalf if they become incapacitated. Only about 10% of LGBTQ individuals in the U.S. are married and require additional estate planning strategies.
If you are a person of trans experience and your estate plan reflects your deadname, or your gender assigned at birth, you should work with an estate planning attorney to update your estate plan so it reflects your preferred name and pronouns.
Another key issue for LGBTQ parents is the definition of who should be considered a “child” or “descendant.” The traditional definition of a child as someone who is “born to or adopted by” the person writing the will or trust does not work for every family. In fact, with the increase in Assisted Reproductive Technology, it is becoming common for neither parent, or only one parent, to biologically related to a couple’s children.
As a result, the law may consider you and your child to be unrelated, and your child may have no legal right to inherit from you if you were to die without an estate plan in place that specifically names that child.