Proper estate planning is so important for anyone who has assets they wish to protect. Estate planning ensures that your wishes are honored; your assets are distributed as you intend, and your loved ones are cared for. While the 2015 Supreme Court ruling that legalized same-sex marriage created significant opportunities for LGBTQ couples, there are still unique challenges they need to consider.

Here are some common concerns LGBTQ individuals and couples should address when creating an estate plan:

Challenges in LGBTQ Estate Planning

• Custody battles over non-biological children if the biological parent has died.
• Family interference with a spouse’s or partner’s ability to make decisions on behalf of their loved one.
• Contested wills by family members who may not recognize the validity of the relationship.
• Complications from prior marriages if a same-sex couple married in one state, moved to another that didn’t recognize the marriage (pre-2015), and didn’t officially annul the marriage.

1. Ensuring Assets Transition as You Wish

While same sex marriage is now legal, not all LGBTQ couples are married. Many LGBTQ individuals are in serious partnerships or domestic partnerships without the legal recognition of marriage.

If you’re in a domestic partnership or romantic relationship and pass away without an estate plan, the state will decide who inherits your assets. Unfortunately, domestic partners are rarely included in the intestate process, the default method of inheritance when someone dies without a living trust.

Intestate laws vary by state, but the general rules are:

• If you’re married with no children, your spouse inherits your estate.
• If you’re married with children, your estate is split between your spouse and children.
• If you have no spouse or children, your parents or closest blood relatives inherit the estate.

To make sure your partner or chosen beneficiaries are protected, it’s essential to create a living trust that clearly outlines your wishes.

2. Critical Documents to Have in Place

Estate planning involves more than just a will. LGBTQ couples need to ensure their documents are comprehensive and up-to-date to reduce the risk of challenges from other family members. Key documents include:

• Durable Financial Power of Attorney: Allows your partner or spouse to make financial decisions on your behalf if you’re incapacitated.
• HIPAA Privacy Authorization: Ensures your partner can access your medical records and discuss your care with healthcare providers.
• Advance Healthcare Directive: Specifies the type of care you want if you’re unable to advocate for yourself.

3. Planning for Your Children

Same sex parents often face unique challenges when planning for their children, particularly when one parent is not the biological parent. Legal adoption by the non-biological parent, often referred to as “co-parent adoption,” is a crucial step to solidify parental rights.

If the biological parent passes away and the non-biological parent hasn’t legally adopted the child, custody battles could arise. Without a clear plan in your estate documents, the courts may appoint a guardian for your child, and their choice may not align with your wishes.

To avoid uncertainty, clearly designate guardianship for minor children in your estate plan.

4. Reviewing Real Estate Ownership

If you purchased property before marriage equality or before legal recognition of your partnership, it’s essential to review and update the title. Ensure that property titles reflect your current marital or partnership status and align with your wishes to avoid complications.

5. Make Sure You Have a Plan

If you don’t have a plan, the state has a plan for you and its called probate.

Probate is the court supervised process of settling your estate if you die without a trust. It can be lengthy, expensive, and invasive, with all proceedings becoming part of the public record. Here are some common problems with probate:

• Delays: Probate can take 1 to 2 years.
• Costs: Probate fees, including attorney and court costs, are 6% to 8% of your gross estate and can significantly reduce the value of your estate.
• Loss of Privacy: Probate records are public, meaning anyone can access details about your estate and heirs.
• Limited Control: The court, not your loved ones, determines how your assets are distributed.

The best way to avoid probate and protect your loved ones is to establish a living trust. A trust allows your assets to transfer directly to your beneficiaries without the delays and costs of probate.

Work With a Trusted Estate Planner

Estate planning can feel overwhelming, but you don’t have to navigate it alone. We’re here to help. Schedule a phone or zoom appointment today and take the first step toward securing your future.