While estate planning is a necessary task for all adults, LGBTQIA+ individuals and couples have an even greater need than others for estate planning. Whether you are married, unmarried, in a civil union, or single, as an LGBTQIA+ individual you must protect yourself in a legal system that may not provide you the same benefits as others. In our DIY society, it can be tempting to prepare your own estate plan. This is rarely a good idea under any circumstances, and for LGBTQIA+ couples and individuals, it is even more important that you work with an experienced estate planning attorney
Since each state has its own estate planning laws—particularly when it comes to the rights of a non-biological parent—having a knowledgeable estate planning attorney to guide you through the planning process is essential. Estate planning for LGBTQIA+ couples and individuals doesn’t have to be a frightening prospect. Attorney Eric Gullotta will make the process as comfortable and easy as possible while ensuring you end up with an estate plan that reflects your current situation and addresses any future changes.
Overview of Important Aspects Related to Estate Planning for LGBTQIA+ Couples
Understand Your Marital Status
While this may sound like a no-brainer, you must be clear on your marital status. The Supreme Court’s 2015 decision in Obergefell v. Hodges legalized same-sex marriage across the United States. The patchwork of prior state laws, however, had some unintended consequences. Before 2015, some couples were married in states that recognized same-sex marriage, then later moved to states that did not. When their relationship later broke up, many of these couples didn’t bother with legally dissolving their marriages because they were under the impression that they weren’t married.
Other same-sex couples have remained in a civil union—a marriage-like relationship that was created primarily as a means to provide recognition under the law and provide legal protections to the couple at the state level. This creates a “gray” area when it comes to the legal protections provided, making estate planning that much more important. Unmarried and married LGBTQIA individuals and couples may not have their financial, medical, or matters regarding their children honored without a clear estate plan.
Why Having an Estate Plan Is Important Whether You Are Married or Not
As an LGBTQIA+ individual or couple, you need an estate plan to ensure your wishes are properly carried out following your death or in the case of an incapacitation. If you are single, you can direct where you want your assets to go following your death and who you want to make healthcare decisions on your behalf should you be incapacitated. LGBTQIA+ couples need an estate plan to ensure their partner has all the rights they are entitled to in the event of death or incapacitation.
How Probate Can Be Avoided
Probate can be avoided in the same way for LGBTQIA+ individuals and couples as it can for others, generally through the use of a trust for the distribution of assets. A will must go through the probate process, which can be expensive and lengthy during an already difficult time. A trust is private and does not have to go through probate—a public process.
Consider Medical Needs
Far too many same-sex couples, whether in a civil union or married, never think twice about what would happen if they were to fall ill or become incapacitated. Would their partner be able to make necessary decisions on their behalf and receive medical information from doctors? An advance health care directive—also known as a living will—allows you to clearly detail your end-of-life care wishes in the event you are unable to express them on your own. A medical power of attorney document designates another person of your choice to make these decisions on your behalf. A HIPAA form is also essential for LGBTQIA+ couples as it allows your doctors to discuss and disclose your health conditions and records with the person you designate.
The Issues Surrounding Children and Adopted Children
When children are involved, marital presumption laws and custody issues following a death can be much more complex for same-sex couples. When only one partner is the biological parent, there can be a unique set of estate planning concerns. A child, either born or adopted into a same-sex union must be specifically identified in all your estate planning documents. You can designate guardianship for minor children in your will. Without such a designation, the courts will choose a guardian, making its best guess as to who the biological parent would have preferred and considering the best interests of the child. The courts might or might not choose your partner or spouse, regardless of whether that person has helped raise the child from birth. The non-biological parent should consider adopting the child, especially if the child was born before the time the couple was married (not every state has marital presumption laws). Adoption not only establishes a legal relationship, it also plays an important role in asset passage.
Why Legally Naming Your Partner or Spouse on Estate Planning Documents Is Essential
Naming your partner or spouse on estate planning documents leaves no room for wondering what you would have wanted. When your wishes are clearly and legally stated in a professionally prepared estate plan, then you can rest easy knowing those wishes will be carried out.
What Documents Should Be a Part of Estate Planning for LGBTQIA+ Couples?
Health Care Directives/Power of Attorney
Making sure your partner can make healthcare decisions on your behalf and that your end-of-life wishes are clear can be accomplished through an advance health care directive and a healthcare power of attorney document. Add a HIPAA document and you are protected in the event of an illness or incapacitation.
Beneficiary Designations
Your life insurance policy, retirement fund(s), and any other items with beneficiary designations should reflect your wishes that your partner is the beneficiary. Many people neglect updating these documents until it’s too late. Make sure your bank accounts, property titles, and vehicle titles are jointly titled so they will automatically go to your partner or spouse.
Will
You may find that a trust will take care of your assets, however, if you have minor children, you must have a will that names a guardian for your children. If you die without a will or a trust, California intestate laws will determine who will raise your children, and who will inherit your assets. The people chosen by the court under these laws might not be those you would have chosen.
Trusts
Depending on your level of assets and the extent to which you want to protect those assets and minimize your tax burden, a revocable living trust might be your best option. A trust allows you to avoid probate, getting your assets to those you choose much more quickly.
How the Gullotta Law Group Can Help LGBTQIA+ Couples With Estate Planning Goals
Regardless of your situation in life, choosing the best estate planning attorney can ensure that your planning goals are fully met. When you choose Gullotta Law Group for estate planning for LGBTQIA+ couples, the process will be simple and easy and you will always be sure that your plan is legally sound and will accomplish what it is intended to accomplish. At Gullotta Law Group we have 15 years of experience in the field of estate planning and have been featured in the media for our trusted legal opinions regarding estate planning.
Our friendly, attentive staff and simple flat-rate fees take much of the worry out of your estate planning needs. Attorney Eric Gullotta wants to make sure that when the unexpected happens you have a plan in place that protects you and your loved ones. As a former CPA who holds a master’s degree in taxation, Eric will work closely with you and your loved ones to develop a thorough, highly personalized estate plan. Contact the Gullotta Law Group today.
