Estate Planning for the LGBTQ+ Community

Estate planning is essential to everyone, but the LGBTQ+ community has often had to struggle with the issue of not being offered the same protections that heterosexual couples are guaranteed. For this reason, it’s important that those in LGBTQ+ community be especially thoughtful about estate planning.

Naming a Partner

Naming your partner is essential to estate planning because having them named ensures that they have authority to make decisions for you, both medical and financial. The term partner here refers to an unmarried person’s life partner. The law recognizes a spouse, but not necessarily a partner because the legal responsibilities of that are still ambiguous in the law. Particularly for the unmarried, state law typically would by default give authority to living relatives who would have decision making power over your estate, despite your preferences and relationship status. You’ll want state and federal laws to recognize your partnership or relationship so that authority can be given to the individuals of your choosing during a time when decision making about your life and estate can be done in the way you would want.

Without proper documents, especially in a state that does not recognize same-sex marriage, your partner may not be entitled to anything. A person will want to name their partner a beneficiary or an executor. Securing their name in legal documents will mean they are guaranteed to get an inheritance if named beneficiary or have authority to manage the estate if named executor. A lack of proper estate planning documents means that when you pass away, you have died intestate, meaning that any living partner may not be entitled to various assets including but not limited to bank accounts, property, and retirement accounts. Specifically if you are unmarried, whether a part of the LGBTQ+ community or not, creating an estate plan ensures that your relationship is acknowledged if one of you passes away. The surviving individual will be able to access as many benefits as possible.

Elements of a Good Estate Plan

A will is typically a good foundation for any estate plan. A will is a document that expresses your clear wishes regarding the distribution of assets, funeral arrangements, resolution of outstanding debts, and the designation of guardians for minor children among other things. A durable financial power of attorney (POA), living will, medical power of attorney and HIPAA authorization are ways you can authorize another individual access to your personal financial and medical information. If a person wishes for these files to be confidential, they must specify that requirement to the person who has access to them. If your will goes through the probate process, it will become a public record. If privacy is a concern, it’s best to speak with an attorney who can advise as to what documents become public record and whether there is a means to keep them private.

It is also essential to consider family conflict within the context of estate planning. Regardless of one’s gender identity and sexual orientation, family conflict or being estranged from your family can make leaving property behind chaotic when it does not have to be. It’s recommended that the estranged family members come together to reconcile and discuss the will plans. This can avoid future conflicts with the will, and in the event of an untimely death, such an understanding will help to keep peace. An attorney can review your family dynamic and advise on the best ways to prevent issues from arising.

If reconciliation isn’t a possibility, it may be helpful to add a no-contest clause to a will or living trust. A no-contest clause preserves your estate in the case that someone challenges the validity of your will or trust. It’s a good precaution to have a no-contest, but it’s not foolproof. If the validity is challenged and the person challenging loses their case, then that person will not inherit anything. However, if they succeed, then the will gets thrown out.

These clauses could be helpful, but their relevance depends on the state where you live. It’s a good idea to contact an estate planning attorney for more information.

How Do I Handle Real Estate?

There are some aspects of life that estate planning can aid with, such as trusts and titling real estate. There are various ways to own property, title property, and manage property. If you are unmarried, there are a couple of ways to title property that benefits the surviving partner.

Titling your property as joint tenants with rights of survivorship allows two or more people equal rights to the home. In this title, complete ownership goes to surviving owners when a person dies so it can be a good option for unmarried people.

Tenants in common are another option for unmarried people. Both partners may hold a percentage of the property, but the percentage may differ. Although this option may be suitable for people contributing different amounts to the mortgage, if someone dies, the home won’t automatically go to the surviving partner. If this is the title arrangement for your real estate, it’s best to draft a will protecting the partner’s interest in the home.

There is also a community property title for homeownership. This state-level distinction will determine ownership of a married couple’s assets. Under this law, whatever the spouse owns, the other owns it. This isn’t available in all fifty states. Only nine states have this law. Check the laws in your state to determine if this is applicable. An attorney can explain what your options are given where you reside, and the advantages of each.

Factors Unique to the LGBTQ+ Community

Many of the circumstances mentioned thus far involve general facets of estate planning and wills that can apply to married and unmarried individuals that identify with various gender identities and sexual orientations. There are other factors for those in the LGBTQ+ community to consider.

Understanding how to go about making sure you are a beneficiary and entitled to that authority after changing a name, pronoun or gender is essential to the estate planning process. This may require that you show the court proof of the name change so that they are able to designate you as the rightful beneficiary. Otherwise, it may be beneficial for an attorney working on your estate documents to clearly include language that will prevent any confusion regarding name changes or the beneficiary’s identity. The language in the will can assist both the court and the executor of the will in knowing the intention of the person who created the document.

Throughout the estate planning process, people should ensure that pronouns are respected and clear as well as what information should be kept private. Using terms like “individual,” “spouse,” and “child” without providing too many specifications such as full names or pronouns could be helpful if you know you are adding a beneficiary in the process of transitioning. Likewise, when choosing an individual to look after your medical and financial needs, it may be helpful to consult a legal professional to ensure that the right individual is considered and protected with legal authority to make those decisions.

Estate planning is critical to ensure that your assets are managed in the way you want after your passing. At Rosenblum Law, we look to protect you and your loved ones. One of the most important factors throughout this process is handling sensitive issues for you and making sure all the technicalities are taken care of when you are unable to make critical decisions regarding your life. We consider and ask relevant questions so that you can think about various situations and plan for them accordingly. Contact us today for an initial consultation.

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