Estate Planning for LGBT Families

March 1, 2017

Estate planning is an important investment for any family, but it’s particularly vital for the LGBT community. Laws concerning LGBT folks are still developing, and often vary by state, so it’s critical that they take every precaution to ensure they and their loved ones are protected.

The 2015 ruling of Obergefell v. Hodges was a large step in the right direction regarding estate planning legislation. First off, it means that all married couples will be treated equally regardless of sexual orientation under federal and state law. This includes state inheritance and intestacy statutes. However, it did not resolve all complications the LGBT community faces in estate planning. Let’s take an introductory look at what estate planning is comprised of to begin.

Wills, trusts, and beneficiary designation forms

Since LGBT couples and individuals are significantly more likely to adopt than their heterosexual counterparts, and also face more legal complications in adoption and foster care processes, it’s important that these three legal instruments are crafted skillfully to protect their family. Even for those without children, the LGBT community is more likely to be affected by changing and weak legislation that may leave them vulnerable. Though California has relatively strong anti-discrimination laws, we still have progress to make. Also, if you or a family member moves out of state, you may not be as well-protected.

Wills provide instructions for what to do with your assets after your death. For example, you may say who will receive the funds in your savings account or your car. In your will, you’ll also designate who the executor (or the person who will manage your estate) will be, and who will be the guardians of your children if you’re a parent. You may also include your final wishes, which are directions for the funeral or memorial, and logistics for laying your body to rest.

Trusts are “legal instrument(s) by which property is managed for the benefit of another.” Some are created for yourself, and are active during your lifetime (these are known as living trusts), while others don’t apply until your will is activated. They are not meant to replace a will, but are meant to supplement one.

Beneficiary designation forms concern assets that transfer in a different manner from your will, such as “retirement accounts, life insurance policies, and certain bank and brokerage accounts.” These forms override your will, so they must be written carefully.

End of life and advance healthcare directives

Healthcare power of attorney is something all individuals should consider, regardless of health status or age. If you’re unable to make your own medical decisions (such as by being unconscious), whoever you’ve previously designated as your healthcare power of attorney can make those decisions for you. This varies greatly by state law, so it’s particularly important to arrange ahead of time.

Living wills instruct your doctor on “how to decide when to withdraw life-sustaining treatments if you are unconscious and there is no reasonable chance of your recovery.”

HIPAA Authorization is another item to consider. HIPAA, or the Health Insurance Portability and Accountability Act, concerns the privacy of your health information. It stipulates that outside of your healthcare providers, your information only be shared with you and anyone you personally authorize. This can be important in an emergency, so that you have someone you trust to help you make medical decisions. LGBT couples may wish to authorize their spouse or partner, another family member, or a very close friend.

Financial power of attorney

Your spouse or family members do not necessarily automatically gain control over your legal matters in the case of your death. It’s critical to determine ahead of time who should have the “power of attorney,” or the ability to make financial decisions for your estate.

Though estate planning can be complex, it may also be simple, depending on what you want and the assets you own. Our LGBT estate planning attorneys are experienced in working with families to craft plans that protect them and their loved ones. Though it can be difficult to consider what will happen in the event of an emergency or even death, a strong, clear estate plan can give you peace of mind.

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