Estate Planning for LGBTQ+ People & Their Partners

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Lauren Pitman

Attorney, Founder

This year, we won’t be celebrating Pride with parades and glitter because of the public health crisis. I’ve been thinking instead about the ways I can support my LGBTQ+ friends and community, and the best way I can offer help is with solid information about estate planning.

As important as it is for all families to plan, families that include same-sex couples need to take extra precautions. Three common legal issues faced by LGBTQ+ families are common-law marriages, adoption, and contests against your estate plan.

Durable Power of Attorney

A durable power of attorney document is important for everyone over the age of 18; it’s the document that allows another person to make your medical and/or financial choices for you if you are incapacitated and cannot make them yourself.

This document is especially important if you don’t have a clear first-choice to make your decisions. There are states where the default statues do not automatically give authority to a domestic partner, for example, and if you are unmarried, you need a durable power of attorney to make your choice clear.

Common-Law Marriages

While I am thankful we have marriage equality in the United States of America, I recognize that marriage is a political choice as well as a religious one. In some cases, LGBTQ+ couples who had been together for many years before marriage equality existed in the United States. They opt not to get married, and this is also a valid choice, but there could be significant legal consequences to this choice.

There are only ten states that still recognize common law marriages. In the other states, the court depends on an estate plan to carefully and explicitly name the partner as heir to the estate.

There have been high-profile situations, however, where the surviving partner did not have rights to the estate they helped to build. There have been many, many historical examples of a partner being overlooked for the “legal” heirs, such as parents, siblings, even nieces and nephews.

The point is not that the legal heirs don’t have a claim to the estate; the point is that the person writing the will has the right to choose who benefits and who doesn’t. If you want to ensure protection for your partner, creating an estate plan is the best way to make those intentions clear.

Adoption & Children’s Issues

All children come with an extraordinary amount of paperwork. Unfortunately, ensuring your legal rights to your own child in a same-sex couple might require a little extra due-diligence.

First of all, adoption can be an expensive endeavor. One couple in Texas estimated it cost in the realm of $100,000 to adopt their two children. This requires financial planning and commitment. If you have invested the time, energy, and financial commitment, you want to create an estate plan that adequately serves your children in case something happens to you.

If one partner has children from a previous relationship or marriage, the other may choose to adopt them so they have legal rights to the estate. The same is true for surrogacy and sperm-donation. If one partner carries the child, the other will legally adopt on the birth of the child, so both parents have legal rights.

Failing to follow-through on this paperwork can create enormous stress for children if something happens to one parent. This would be on top of the difficulty they are already facing by losing someone they love.

Adult children are also a concern. There is a high-profile case in New York City about a woman who lost both her mother and her mother’s longtime partner in the span of only a couple of weeks. Her mother’s partner (they chose not to marry) had an unusual 30-day survivorship clause on some of her assets. These assets passed directly to three charities instead of to her partner’s estate (and, subsequently, her partner’s children).

This woman in particular could have made her will clearer. She asked her handyman to update her will because he was good with computers. I strongly advise against this. You need an experienced attorney when you have a complex family.

Protecting Your Estate Against Contests

Even if you make an estate plan, especially if you do so without professional guidance, your will can be subject to contest.

One of the ways that the woman in New York could have protected her will against contests would be to recognize her partner’s children formally in her estate plan. She could have left them a nominal amount of money or another gift, showing her intention to plan for them. This would have made a contest more difficult.

It may have also been this woman’s intention that her multi-million dollar estate pass to her partner and therefore to her partner’s children. Unfortunately, we cannot know her intention because she did not express it.

Another common difficulty for LGBTQ+ couples occurs when the rest of the family rejects the relationship between two partners. The family sometimes excludes partners from obituaries or dismisses their opinions about funerals and memorial celebrations.

In order to protect your partner against these types of difficulties, a thorough estate plan is truly necessary.

Creating a plan that works for you and your family is a deeply personal act, as all families are different. If you or someone you love is a member of the LGBTQ+ community, I hope you will take the time to carefully express your intentions in your estate plan. This is an act of love.

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Disclaimer: The information contained in this article should not be considered tax or legal advice and is not a substitute for such advice. State and federal laws change frequently and the information in this article may not reflect your own state's laws or the most recent changes in state or federal law. For current tax and legal advice, please consult with an accountant or attorney licensed to practice in your state.
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