LGBTQIA+ individuals and couples often face unique legal challenges in estate planning. Despite progress, same-sex couples must be particularly thorough to ensure their rights and wishes are honored, especially after death. The simple fact is this: same-sex couples must continue to be conscientious and thoughtful when it comes to their estate planning efforts. 

Even with simple estates, estate planning can be confusing and convoluted. Add in the additional unknowns, legal complexities and battles that members of the LGBTQIA+ community face in today’s world, estate planning can seem even more daunting.

But RKW Law Group is here to help with the estate planning needs of LGBTQIA+ individuals and couples. Here are six frequently asked questions regarding LGBTQIA+ estate planning:  

What benefits does estate planning provide me and my family?

In addition to protecting your spouse or partner, an estate plan can offer other financial benefits as well. For example, estate plans can help you avoid probate, potentially give tax advantages and, if using the appropriate legal document, may even offer you legal and creditor asset protection.

Do all states define same sex marriage, domestic partnership and civil union the same way?

The guaranteed benefits and rights for individuals in same-sex marriages, domestic partnerships, and civil unions can vary significantly based on local state laws. It is essential to comprehend and be aware of what you and your partner are entitled to under the law, and ensure that your estate plan articulates your wishes as clearly as possible.

How do I ensure our children stay with my partner if I die?

If you share children, this may be one of the single most essential components that Estate planning for LGBTQIA+ couples must address. It’s not uncommon for courts to step in and make decisions about guardianship for children. And often, the family of origin or another biological parent will be given preference. If you share a child, you can avoid any misinterpretations about who should step in by formally nominating your spouse or partner to be legal guardian of any children if you pass away or become incapacitated.

Do I actually need to specifically name my partner or spouse in my documents?   

Even if you’re legally married, if you want your partner or spouse to have the authority to be able to make decisions for you, whether those are financial or medical, you must specifically designate them in your documents. The most important documents to appoint them as your agent or fiduciary are:

• ‍Durable Financial Power of Attorney (POA) – A Durable General (Financial) Power of Attorney is an instrument by which you name another person as your agent to manage your assets and enter into certain financial transactions on your behalf. As this Power of Attorney does not terminate upon your incapacity or disability, it generally circumvents the necessity of having a court appoint a guardian if you become incapacitated.
• ‍Durable Medical Powers of Attorney and Advance Medical Directives. – This instrument allows you to name another person as your agent to make health care decisions if you are incapable of making such decisions. This     document provides instruction for your agent with respect to what medical procedures and treatments should be withheld or withdrawn if you have a terminal illness or you are in an irreversible coma. Finally, you may     state your preferences for organ donation and provide for the manner of disposition of your remains upon your death.

‍Is my estate plan confidential and how do I ensure it will remain confidential?

Other than your Will, which becomes public record upon your death, most of your Estate plan is private. This would include a Revocable Living Trust. Privacy can be a valuable asset. 

What if I don’t do any estate planning? 

When you pass away without proper estate planning documents in effect, you will have died “intestate”. Unfortunately, if you live in a state that does not recognize same-sex relationships or partnerships, this means that when you pass away, your partner may not be legally entitled to anything - this could include bank accounts, property, children, retirement accounts and other assets. The only way to fully ensure your family is protected is by having a clearly-defined estate plan. 

Understanding what challenges may arise and what protection is available is essential for LGBTQIA+ couples. Without a proper, legal Estate plan in place, you are not guaranteed your wishes will be honored. Let’s design a plan that’s equipped to protect you, your legacy and your loved ones.