Do LGBT Couples Need a Will more than Heterosexual Couples

May 11, 2016

With regards to gay, bisexual, lesbian and transgender rights, California is at the very top of the list of liberal states in U.S.A. While same-sex sexual activity was legalized in 1976, it was only until recently that same-sex marriage and adoption became legal.

Since then, LGBT couples were given the mandate to legally wed throughout the country. The main question now remains whether it is still essential to set up a will. After all, shouldn’t intestacy laws apply to you and your spouse? Won’t the law make sure that the living partner and your children inherit your property?

Unfortunately, being so sanguine on the full application of the intestacy laws to gay couples may not be in your best interest. Additionally, even if the laws are equally applied to LGBT couples, it does not guarantee that your property and estate will go where you wish. Having a well-planned and detailed LGBT will can help save you family any additional grief during these trying times.

What if I Die without a Will and was Married in California?

LGBT couples that have not drafted an estate plan will be elated to know that California provides this service for free. This state provided estate plan is known as intestacy and according to its laws, the property and estate of a person who dies without leaving a will or trust will be passed to his/her spouse and relatives. However, this only applies to couples that are either married or in a registered relationship.

If one partner in the relationship dies before preparing a will (Intestate), California intestacy laws dictate that the surviving partner gets a portion of the deceased estate. This portion depends on the time that these assets were acquired and whether the deceased has living relatives and children.

How Will My Real and Personal Estate be Divvied as per California Intestacy Law?

Without a will, your property, estate will be divided among your spouse and relatives as follows: (Provided both parties are registered with California state secretary or lawfully married)

-The living partner shall inherit all community properties (assets earned after registration of domestic partnership or marriage)
-If you die without children or any surviving relatives, your spouse will inherit all your separate property.
-If you had children but no partner, the children shall inherit the property of the deceased.
-If you die with only one child (or any descendants) and living relatives, your spouse inherits half your separate property.
-Dying with two or more kids means that your spouse gets one-third of your separate property.

Benefits of Drafting a Will as an LGBT Couple in California?

If you and your spouse don’t live in a state that recognizes same-sex marriage and fail to draft a will, the state will determine what happens to your property. Such states will not give anything to the living partner. Fortunately, California is one of the states that recognize LGBT marriage and registration of same-sex domestic relationships. Without a doubt, the advantages of drafting a well-planned will far outweigh leaving matters in the hands of the state. You get to decide who inherits what part of your property upon your demise. Other crucial benefits include:

-A will allows you to leave all your things in trust for your surviving family and delegate a trustee to manage all aspects.
-If you have underage children, you can name a guardian of your choosing to provide care upon your death.
-Having a well-drafted will helps you plan adequately for tax and minimize liability.
-As the owner of your property, you can decide to include a charitable organization or any other beneficiary in your will.

Whether Gay or not, every couple needs to have life planning documents to address what happens in the event of illness or incapacitation. This includes estate planning documents that will govern events after the death of one or both partners. For LGBT couples, all these documents become very necessary to protect your partner, children, and the family unit as a whole. Even if you do not have many assets or kids to consider, every one of these vital documents should be planned for and executed.

Failure to prepare for death, illness and incapacitation will lead to the legal system taking over. The LGBT community needs to take advantage of the new marriage based tax planning devices made available after Wolf and Obergefell as well as the 2013 case of the State Vs. Windsor, which saw the federal Defense of Marriage Act ”DOMA” struck down.

Our lawyers help LGBT couples protect their rights and navigate through these new marriage benefits and apply them within their estate plan to ensure that your family does not face additional grief in the event of your demise.

Photo by Scott Graham on Unsplash