LGBT Estate Planning

Will you be shut out when your partner really needs you? Without proper planning, you may be.

If a member of the LGBT community fails to properly plan, the result can be devastating to his or her partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity.

This need for an estate plan is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Domestic Partnerships—an Estate Planning Perspective

Many states and local jurisdictions offer domestic partnerships, civil unions, or similar methods of legal recognition for same-sex relationships. The rights and responsibilities of registration vary substantially from jurisdiction to jurisdiction. For example, in some states, registration affects property rights between the partners.

Before registering under any of these arrangements, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBT community. That attorney can counsel you on the implications of registration and advisability of registering in your unique situation.

The Problems Estate Planning Solves for the LGBT Community

A LGBT couple can avoid numerous problems through proper estate planning:

• A Living Trust can establish the client’s domestic partner as the trustee, i.e. manager of the client’s affairs (if he or she so desires) if the client becomes incapacitated through illness or accident.
• The Health Care Power of Attorney can also avoid the potential problems of the client not maintaining control over his or her health care decisions and the domestic partner not having access to his or her partner during a period of incapacitation.
• A proper estate plan will ensure the client’s assets are distributed to whom he or she wants, when and how he or she desires.
• The Living Trust guarantees privacy, through avoidance of probate and its process of opening court records. This would be beneficial for any clients and their domestic partners who wish for their relationship to remain confidential.
• Proper estate planning assures that any surviving minor children are raised by the person designated in the plan.
• Finally, although there are no federal spousal benefits for LGBT couples (compared to those of heterosexual married couples) proper estate planning will ensure correct strategies are used to avoid penalties, extra taxation when possible, and the court and attorney costs of probate.