LGBTQ Estate Planning Frequently Asked Questions

For current Estate and Gift tax figures, click here.

• • Does domestic partnership or civil union provide all the benefits of marriage?

• • No. These various relationships affect state law rights and responsibilities only in the states which recognize them. Only marriage is respected by the federal government.

• • I am married, why do I need to plan

• • There are many important reasons to create an estate plan, such as avoiding probate, minimizing taxes and providing creditor and divorce protection for beneficiaries.

• • Can my spouse or partner handle my financial affairs if I am incapacitated?

• • No, you have to do estate planning in order to allow your spouse or partner to have that authority. Specifically, by designating your spouse or partner as agent under a General Durable (Financial) Power of Attorney, he or she can make decisions on your behalf regarding financial matters.

• • Can my spouse or partner make Medicaid decisions for me if I am sick?

• • If you are married, or in a registered domestic partnership or civil union recognized by your state, your spouse or partner can make those decisions for you. If you are not in a registered relationship, or that relationship is not recognized by your state, then state law would recognize your family of origin to make those decisions. However, you can override state law and give your spouse or partner the authority to make such decisions by signing a Health Care Power of Attorney. With such a document, when you are unable to make your own medical decisions, your spouse or partner can step in and speak for you. Further, this document will designate your spouse or partner as your choice to be guardian for you if one needs to be appointed. Without such a designation, your family of origin may have priority for such an appointment.

• • How can I be sure that I will be allowed to visit my spouse or partner in the hospital or assisted living facility?

• • If you are married or in a state that recognizes civil unions or domestic partnerships and you register as such, proof of such registration would be sufficient. Otherwise, you would need to have your spouse or partner designate you as agent under their Health Care Power of Attorney. The agent also can limit other visitors.

• • Can I make decisions about my spouse or partner’s remains?

• • Yes, if you are married or in a registered relationship and in a state which recognizes that relationship. However, if you are either, i) not married or in a registered relationship, or ii) you are in a state which does not recognize that registered relationship, then default state law allows your partner’s family of origin rather than you to make those decisions. However, if your spouse or partner designates you as agent under their Health Care Power of Attorney, then you would be able to make such decisions.

• • Will my spouse or partner be appointed guardian of my minor child?

• • Unless your spouse or partner has adopted your minor children, a court would decide what would be in the child’s best interest. Typically, your family of origin and that of the child’s other biological parent are given preference by the court. However, in your last Will, you can nominate your spouse or partner to be the guardian for your minor child. The court will then give weight to your suggestion while weighing what is in the child’s best interest.

• • Is there a tax if I give some of my property to my spouse or partner?

• • Maybe. Federal law allows married couples to give each other an unlimited amount of property without gift tax during life or estate tax at death. Federal law does not recognize non-marriage relationships. However, each person gets to give up to his or her tax exclusion during their lifetime to anyone they want. But, any use during lifetime reduces the amount available for transfers at death. In addition, anyone can make a gift to any other person, called the Annual Gift Tax Exclusion, without gift tax and without reducing his or her estate tax exclusion.

• • Are my estate planning documents a matter of public record?

• • Only your Will is a matter of public record. Your Revocable Living Trust and your Powers of Attorney are not public. Therefore, by using a Revocable Living Trust you can maintain the privacy of your wishes. Prying eyes of co-workers and neighbors will not have access to the details of your estate plan.

• • Do unmarried couples have to plan more than married couples do?

• • Yes. The default in state law, called “intestacy,” is designed with married couples in mind. If a married person dies without any estate plan, the survivor will get a good portion of the assets left behind. However, if you have not married, or you are in a state that does not recognize domestic partnership or civil union, your survivor would get nothing. Instead, the family of origin of the partner who died would get anything in that partner’s name, including bank accounts, real estate, etc.

• • Is a Living Trust a good idea for a LGBTQ person?

• • Yes. If you are part of the LGBTQ community, a Living Trust offers protection for your estate, as well. It will completely eliminate a living probate, a death probate, and you can minimize or eliminate estate taxes. Further, it provides privacy from prying eyes.