Estate Planning for Members of the L.G.B.T. Community
Estate planning is important for everyone: single, married, straight or LGBT. However, for the LGBT community, proper estate planning helps provide protections against discrimination when people may be reluctant to recognize your relationship, even if you are married. The need for proper estate planning is especially crucial in case of an accident, illness, or unexpected passing of a spouse or partner. Without a proper plan in place BEFORE such events, the other partner or spouse could be legally precluded from having a role in the decision-making of his or her partner’s/spouse’s care, affairs, or health care decisions. And, even if you are legally married, planning is crucial in the event you encounter resistance to recognizing your marital rights. Before one commits to a marriage or domestic partnership, it is wise to consult with a qualified estate planning attorney who is familiar with the unique legal and personal needs of the LGBT community, so that the attorney may counsel you on the implications of your particular situation.
Issues Addressed Regarding the LGBT Community
An LGBT couple can avoid a number of problems through proper estate planning:
For a married same-sex couple, proper advance planning will ensure they get all the state and federal benefits of marriage, while avoiding probate, maintaining privacy and protecting their assets, even from the potentially high costs of long-term nursing home care.
For unmarried same-sex couples, proper advance planning will ensure their partner will have the legal right to make health care decisions, protect their rights to inherit assets from each other while avoiding probate, utilize planning strategies to avoid the burdens of extra taxation when possible, and even protect assets should one of the partners become ill and require long-term care.
A proper estate plan will ensure your assets are distributed to whom you want, when and how you want, and also allows you to nominate the person or person you want to take care of and raise any surviving minor children.
We recommend considering the following estate planning documents for people who are in a same-sex relationship:
Trusts: A Living Trust can nominate the spouse or partner as the trustee, i.e. manager of their spouse or partners affairs, if he or she becomes incapacitated through illness or accident. This instrument also expresses your desires regarding the distribution of your assets to your partner and other loved ones upon your death, with the added benefit of eliminating the need to probate any of the trust assets. This results in reduced costs and more efficient planning and management of your estate in the event of death or incapacity. Also, the Living Trust guarantees privacy, as it is not a recorded document, which may be beneficial for same-sex couples who wish for their relationship, assets, and beneficiary provisions to remain confidential.
Durable Powers of Attorney for financial and personal affairs: Durable Powers of Attorney (DPAs) are used to ensure that your partner will have the ability to make financial decisions for you in the event of your incapacity, including the power to access your accounts, pay your bills and manage your financial affairs, file your tax returns, and otherwise deal with your personal affairs at a time when you are unable to do so. DPAs can help protect against the unwanted interference of other family members, and the establishment of an unnecessary and expensive conservatorship proceeding.
Advance health care directives: Advance health care directives will allow your partner to make important health care and end-of-life decisions for you when your doctor determines that you are no longer capable of making those decisions for yourself. It is also imperative that you sign the proper authorizations (e.g., HIPAA authorizations) to override the laws that prohibit your doctors and other health care providers from communicating with your partner about your health care matters or otherwise sharing your private medical information during a time of incapacity.
HIPAA release/authorization: In addition to drafting your health care directive, our experienced estate planning lawyers can draft a HIPAA release on your behalf. (HIPAA is an acronym for Health Insurance Portability and Accountability Act of 1996.) A HIPAA release is necessary to authorize your doctors and other health care providers to communicate with a designated person regarding your medical and health care matters. The HIPAA release ensures that your partner will have the ability to speak with your doctors, view your medical records and generally be informed about the status of your health and treatment.
Please be advised that the information on this site is not meant to be construed as legal advice. If you need legal advice, or for more information about Same Sex Couple Planning, please contact our office at (562) 594-4200 for a FREE 30-minute consultation!