As we wrap up another Pride Month, the LGBTQ+ community faces an increasingly uncertain legal landscape. In the wake of the Supreme Court overturning Roe v. Wade, ending the recognition of a constitutional right to abortion, many are worried that other rights, especially those enjoyed by same-gender couples, might also be under threat.
In fact, with Roe overturned, legal experts warn that the Supreme Court’s new Republican majority may come for landmark LGBTQ-rights decisions next, including marriage equality established by Obergefell v. Hodges. In light of this potential challenge, it’s critical that same-gender couples ensure their estate plans are carefully reviewed and updated by an estate planning lawyer who understands the special needs of LGBTQ+ planning to address any such developments. Although we will have to wait and see whether the Supreme Court ultimately decides to rule on marriage equality, same-gender couples can act right now to put in place a number of proactive estate planning measures to ensure their relationships have the maximum legal protections.
Here are answers to some frequently asked questions related to LGBTQ+ estate planning.
Q: My partner and I are in a registered domestic partnership in our state, but we are not married. Do we qualify for the same rights and benefits available to married couples?
A: No, domestic partnerships, civil unions, and other alternative legal relationships to marriage only offer rights and protections in the states that recognize them. Marriage is the only relationship that is recognized by the federal government.
Moreover, the rights and protections offered by domestic partnerships and civil unions can vary widely from state to state. In some states, for example, domestic partnerships and civil unions do not affect property rights between the two partners, while in other states they do.
If you want all of the rights and protections that come with having your relationship recognized by the federal government, marriage is your only option.
However, you can replicate almost all of the benefits of marriage through a comprehensive estate plan—what we call a Life & Legacy Plan.
Q: My partner and I have been living together for 10 years, but we are not married and have no desire to get married. I’ve created a will, but my partner has no estate plan at all. What would happen to me in the event my partner dies or becomes incapacitated?
A: If you are unmarried and your partner dies without any estate plan, your partner’s assets will be distributed to his or her surviving family members according to our state’s intestate succession laws. Those laws only apply to relatives in the eyes of the law, so you would have no right to inherit any of your partner’s assets. If not remedied immediately, this could have catastrophic consequences for you. For example, if your partner dies, and you are not named on the deed to a home you live in together, you could even be left homeless should the family member who inherits the house decide to kick you out.
Similarly, in the event of your partner’s incapacity, you would have no automatic right to make medical decisions on their behalf, nor would you be able to access any financial accounts that are solely in their name. Your partner’s family could even prevent you from visiting your partner in the hospital.
In light of these facts, if you are in an unmarried relationship and you want your partner to inherit any of your assets upon your death or have any say in how your healthcare and/or finances are managed in the event of your incapacity, it’s absolutely crucial that each of you create a Life & Legacy Plan that addresses both death and incapacity.
Q: What kind of estate planning tools typically make up an effective incapacity plan for LGBTQ+ or any unmarried couple? A: Estate planning isn’t just about planning for your eventual death; it’s also about planning for your potential incapacity due to serious injury or illness. Creating an effective incapacity plan allows you to name the person (or persons) you would want to make your healthcare, legal, and financial decisions for you if you are incapacitated and unable to make such decisions yourself.
If you haven’t planned for incapacity, the choice is left up to the court to appoint a legal guardian to make these decisions on your behalf. If you are unmarried and the court appoints one of your relatives as your guardian, your family could leave your partner totally out of the medical decision-making process and even deny him or her the right to visit you in the hospital. And even if you are married, it’s not guaranteed that your spouse would have the ultimate legal authority to make such decisions.
Though the court typically gives spouses priority as guardians, this isn’t always the case, especially if unsupportive family members challenge the issue in court. To ensure your partner/spouse has the ability to make these decisions for you, you must grant him or her the legal authority to do so using medical power of attorney and durable financial power of attorney.
A medical power of attorney gives your partner/spouse the authority to make healthcare decisions for you if you’re incapacitated and unable to do so yourself. Similarly, a durable financial power of attorney gives your partner/spouse the authority to manage your financial, legal, and business affairs, including paying your bills and taxes, running your business, selling your home, as well as managing your banking and investment accounts.
Additionally, you should also create a living will, so that your partner/spouse will know exactly how you want your medical care managed in the event of your incapacity, particularly at the end of life. Finally, don’t forget to provide your partner/spouse with HIPAA authorization within the medical power of attorney, so they will have access to your medical records to make educated decisions about your medical treatment.
Q: My partner and I are married, and we both have a will. Is this a sufficient level of planning?
A: Although a will is a foundational part of nearly every adult’s estate plan, we recommend that couples who have assets create both a will and a trust if you want to ensure your loved ones stay out of court upon your incapacity or death.
A will does not work in the event of your incapacity, which could happen at any time before your death. Should you become incapacitated with only a will in place, your spouse may not have access to needed funds to pay bills, or they might even be forced to leave your home by a family member appointed as your guardian during your incapacity if your spouse is not on the deed to your home.
Furthermore, upon your death, a will is required to go through the often long, costly, and potentially conflict-ridden court process known as probate. In contrast, assets that are properly titled in the name of your trust would pass directly to your spouse upon your death, without the need for probate or any court intervention.
If your relationship is not supported by one or both families, avoiding court is especially important. If a family member doesn’t support your relationship, they are more likely to contest your will during probate. If your will is successfully contested, this could prevent your spouse from receiving assets you left in your will. Not only that, but the process of contesting a will is extremely time-consuming, costly, and emotionally draining for your surviving spouse.
Finally, when an attorney drafts your will, it is typically not set up to protect your assets after they are passed to your spouse from creditors or lawsuits. However, leaving your assets in a trust that your spouse can control would ensure the assets are protected from creditors, future relationships, and/or unexpected lawsuits.
Q: How can I ensure that my unmarried partner is able to carry out my wishes for my funeral arrangements?
A: To make certain that your partner has the legal authority to control your funeral arrangements, you should create a funeral directive, also known as a disposition of remains directive. This directive, which describes how you want your funeral or cremation arrangements carried out, can be included as part of your will, or it can be a separate stand-alone document.
Absent any estate planning, state law dictates who has the right to dispose of your remains and control your funeral, and if you are unmarried, this authority is typically given to your surviving family members. However, a properly drafted funeral directive allows LGTBQ+ couples to opt out of this default and designate the person you want to control your final arrangements.
Q: How can the non-biological parent in an LGTBQ+ relationship gain parental rights and avoid custody battles in the event of the biological parent’s death?
A: To ensure the full rights of a non-biological parent, many legal experts advise same-gender couples to undergo second-parent adoption. But in many states, it can be extremely difficult for same-gender couples to adopt. Some states even permit employees of state-licensed adoption agencies to refuse to grant an adoption if doing so violates their religious beliefs. And given the Supreme Court’s new conservative majority and the recent decision on Roe v Wade, such legal discrimination is likely to continue.
However, using a variety of estate planning strategies we can provide non-biological, same-gender parents with some protection of their parental rights. Starting with our Kids Protection Plan®, LGBTQ couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes. By doing so, if the biological parent becomes incapacitated or dies, his or her wishes are clearly stated, so the court can do what the parent would have wanted and keep the child in the non-biological parent’s care.
Beyond that, there are several other estate planning vehicles—living trusts, power of attorney, and advance health care directives—we can use to grant the non-biological parent additional rights.
An Advocate For LGTBQ+ Rights
Given these uncertain times, it’s more important than ever for LGBTQ+ couples, especially those with children, to have a carefully prepared estate plan that’s been created by a lawyer with experience dealing with these issues, and avoid using online document services at all costs. We can create an estate plan that’s specifically designed to prevent court challenges by family members who disagree with your relationship and provide your partner/spouse with the maximum legal and financial benefits possible.
Using our Life & Legacy Planning Process, we can ensure that no matter what happens to you, your beloved will be protected and provided for in the exact manner you wish, rather than being stuck in a financial and legal nightmare. Furthermore, we can help ensure that non-biological parents in same-gender partnerships have as many parental rights as possible, without resorting to second-parent adoption.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a strategic planning session, during which you will get more financially organized than you have ever been before and make all the best choices for the people you love. You can begin by contacting our office today to schedule a planning session and mention this article to find out how to get this $750 session at no charge.
Disclaimer: All information on this website is for informational purposes only and is not legal advice. You should contact an attorney trained to work with families on estate planning matters regarding your specific situation. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between the Law Office of Keoni Souza, LLC, and any users or any other party.