lgbt estate planning

8 minute read

Complete Guide to Estate Planning for LGBTQIA+ Couples

LGBTQIA+ Estate Planning can be tricky if you’re unfamiliar with today’s rules and regulations. That’s why we created this comprehensive guide.

Throughout much of our country’s history, the LGBTQIA+ community has been forced to diligently fight to be afforded the same securities heterosexual couples are guaranteed. And sadly, without proper LGBTQIA+ Estate Planning, that fight can continue even after death. While some progress has been made in recent years, 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 Trust & Will is here to help with our Estate Planning for LGBTQIA+ Couples guide. It’s designed to cover the added intricacies you may find you’re facing as you set up your estate to honor your legacy and loved ones.

We’ll cover the top 7 tips you need to know while you’re creating LGBTQIA+ Wills, Trusts and other components of an Estate Plan. 

Top 7 Estate Planning Tips for LGBTQIA+ Couples    

We believe that Estate Planning is essential for everyone. And we also understand that LGBTQIA+ couples face unique concerns in this area. Despite any strides that have been made, same-sex couples must do everything they can to ensure their intentions and directives are respected and met, particularly after they pass away.  

Tip 1: Legally naming your partner or spouse is essential    

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 should specifically name them in one of the many Estate Planning documents out there:

  • Durable Financial Power of Attorney (POA) - Authorizes someone to make decisions regarding your financial affairs if you’re incapacitated or unavailable to make them for yourself.

  • Living Will - Also sometimes referred to as an Advanced Healthcare Directive, a Living Will explicitly states your end-of-life care wishes should you ever be incapacitated and unable to express them on your own.

  • Medical Power of Attorney (POA) - This document gives authority to another person (for LGBT couples, it’s often a partner or spouse) to make any and all medical decisions for you if you’re unable to do so.

  • HIPAA - Essential for LGBTQIA+ couples, the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA) privacy authorization form gives doctors and healthcare providers consent to discuss and disclose your health condition and records with the person you designate. This authorization can be incredibly important should medical records ever be needed to confirm or establish mental capacity or medical condition after your passing in order to execute your wishes.

Tip 2: Same sex marriage domestic partnership and civil union is not the same

Guaranteed benefits and rights for those in same sex marriages, domestic partnerships, and civil unions can widely differ depending on local state laws. Be sure you understand and know what you and your partner are entitled to under the law and make sure your Estate Plan states your wishes as specifically as possible.

Tip 3: Proper Estate Planning can offer many benefits

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 right legal vehicle, may even offer you legal and creditor asset protection.

Tip 4: Ensuring your children go to your partner means appointing guardianship

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.

Tip 5: Much of a properly-prepared Estate Plan will remain confidential

Other than your Will, which becomes public record, most of your Estate Plan is private. This would include any Powers of Attorney (POA) you set up - both medical and financial - as well as your Revocable Living Trust. The power of privacy can be a blessing. 

Tip 6: Failing to plan can be planning to fail for same-sex couples 

Unfortunately, if you live in a state that does not recognize same-sex relationships or partnerships, when you pass away, without proper Estate Planning documents in effect, you will have died intestate. This means that if 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 an Estate Plan clearly defined. 

Tip 7: For LGBTQIA+ Estate Planning, attorney input may not be necessary

It’s true! You can fully protect yourself with an online Estate Planning service like Trust & Will. We have state-specific forms that are prepared by attorneys and knowledgeable experts. We can give you everything you need, for a fraction of the cost and time of using an Estate Planning attorney.  

Understanding what challenges may arise and what protection is available is essential for LGBT couples. Without a proper, legal Estate Plan in place, you may not be guaranteed anything. With Trust & Will, you can create a plan that’s equipped to protect you, your legacy and your loved ones. You can create a fully customizable, state-specific Estate Plan online in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning options. Get started today!

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.