Same-sex and LGBTQ+ couples used to have special concerns when creating an estate plan. However the historic Supreme Court decision in Obergefell v. Hodges made same-sex marriage legal in all states in 2015. This made the legal benefits of marriage available to same-sex couples across the country. As a result LGBTQIA+ estate planning looks quite similar to any other estate planning. Or does it? There are unique things you need to consider when your making your estate plan as a LGBTQIA+ person. It only makes sense if you need tips for LGBTQIA+ estate planning.
Specifically, LGBTQIA+ estate planning is a complex process. However it’s important to make sure you take care of loved ones in the event of your death. Here are some tips for LGBTQIA+ estate planning.
Family relationships can be complicated: No-contest clauses
One of the most important things to consider when you are planning your estate is family relationships. It’s important that you have a strong relationship with your loved ones. And if you have any questions about their feelings, it’s best to address them before death strikes. What if you are already estranged with you family though? A sad, but unfortunately still common reality for man LGBTQIA+ people across the country. Then maybe you need to consider a no-contest cause.
A no-contest clause is a provision in a will. It states that if any disputes arise after your death, no one can contest your wishes. The purpose is to avoid expensive litigation between family members who may not want to work together after someone dies. Additionally, and more importantly, it protects your partner, from relatives that don’t recognize your relationship.
If there’s no agreement on key issues then it can lead to long-term conflicts over inheritance distributions and child custody arrangements that extend beyond anyone’s lifetime. Examples of that include like how property will be distributed (especially when it comes to your partner in case you’re not married). The same thing applies to any children your partner and you may have. We discuss these things next.
Marriage and Civil Unions
As an LGBTQIA+ you need to keep in mind that marriage and civil unions are not the same. At least not always. For example, let’s take same-sex couples in Massachusetts and Connecticut. Also they registered their relationships as civil unions before they were legalized by marriage. Then they may still have the same rights under state law as married people. Civil union laws vary depending on where you live. Therefore, you need to be sure about what applies to your case. Keep in mind that civil rights are complex and they are not static. Therefore it’s smart to have a will naming your partner as a beneficiary, even if you are married.
Guardianship
Guardianship is a legal relationship between a minor child and their guardian. The guardian has the power to make decisions for the child, including education, health care and religious upbringing.
You should make sure that you name your partner as your children’s guardians even if you are married. You don’t want to take any chances when it comes to your children. After all, there’s probably no one better to raise your minor children than your partner/spouse.
Guardianship rights are not automatically given because someone is married to one of the parents; instead they often have to specifically petition the court before the judges grant them this right. Non-LGBTQIA+ or unsupportive family members may oppose such a guardianship. That’s why it’s important to appoint your partner.
Health Care Proxy
A Health Care Proxy (or Health Care Directive or Living Will) is an important legal document. It allows you to appoint someone to make decisions regarding your health care wishes. That’s especially useful if you become unable to do so yourself. The Health Care Proxy can be used in three ways:
If you are unable to communicate your medical wishes. Then the person you named your proxy will make decisions on your behalf. This could be your partner or spouse. Since a partner is not usually family a hospital will not allow them to make decisions for you.
If a physician has declared you incompetent. Then, again, your proxy will make all medical decisions for you. This includes withholding or withdrawing life-sustaining measures or artificial nutrition and hydration when medically appropriate.
In addition to such a directive, it’s crucial for LGBTQIA+ individuals to have a HIPAA.
HIPAA
A HIPAA (Healthcare Insurance Portability and Accountability Act) privacy authorization form is essential for LGBTQIA+ couples. It gives doctors and healthcare providers permission to discuss and disclose your health condition and records with your partner; or any person you designate for what it’s worth. This can be incredibly important if you need medical records to confirm or establish mental capacity. By filling out a HIPAA you allow doctors to keep your partner up-to-date regarding your condition.
But these are not our only tips for LGBTQIA+ estate planning.
Powers of Attorney
A power of attorney is a legal document that allows you to appoint someone (the “attorney-in-fact,” or “agent”) to act on your behalf. Just like a health proxy, this is particularly useful if you become incapacitated or cannot conduct business for yourself. An agent can make medical decisions, manage property and finances and transfer assets in order to pay bills.
In the LGBTQIA+ community, powers of attorney are especially important. They can help ensure people will carry out your wishes even if you are unable to speak for yourself. For many LGBTQIA+ people their chosen family is often equally or more important than their biological family. You may want to designate a close friend as your attorney-in-fact. This way they can access any medical information necessary to make appropriate financial choices on your behalf.
Most of estate planning is private
For most of estate planning, you can do it privately. The exception to this rule is your last will and testament. These are public records that anyone may see. You can also choose to keep some things private. For example, if you don’t want family or friends knowing about certain assets or arrangements you’ve made for someone else.
As an LGBTQIA+ you know that your privacy and handling legal matters with discretion is important. In order to avoid any issues with unsatisfied relatives you can always consider a couple of things. After all, your estate plan might not be entirely confidential.
For example:
Someone could accidentally discover an important document while going through your things after your death.
A relative who broke into a locked box containing an important paper might accidentally (or not) destroy it;
LGBTQIA+ planning requires more than just a Last Will
LGBTQIA+ estate planning is important because it protects you and your partner from discrimination in the event of your death or incapacity. But LGBTQIA+ estate planning goes beyond just a Last Will and Testament: you’ll need to make sure you have properly executed certain documents. It’s important to establish a power of attorney, health care proxies and directives. Moreover, you may include durable powers of attorney (for finances) and additional living wills/advance healthcare directives.
Once you’ve created these documents, you should keep them securely in a safe place. This way no one can access them without proper authorization. Also because you should update them every few years as laws may change regarding same-sex relationships.
Final Thoughts
In our modern society, the LGBTQIA+ community is becoming more and more accepted. However, there are still hurdles that they must overcome in terms of equal treatment under the law. Not to mention acceptance by their families and society. This means it’s even more important for LGBTQIA+ individuals to plan for their future with care. We hope that this articles has offered you useful tips for LGBTQIA+ estate planning!
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