We Help with LGBTQ+ Estate Planning

Estate planning is critical for everyone: single, married, straight, and LGBTQ+. However, for the LGBTQ+ community, estate planning provides protections to help guard against discrimination when people are reluctant to recognize your relationship, even if you are married.

In many states, if a member of the LGBTQ community fails to plan properly, the result can be devastating to his or her spouse or partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity. This need for an estate plan is critical in case of an accident or illness that renders a partner or spouse incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Happy Family — Winter Haven, FL — The Tessier Law Firm

Even if you are married, planning is critical in the event you encounter resistance to recognize your marital rights.

In many states, if a member of the LGBTQ+ community fails to plan properly, the result can be devastating to his or her spouse or partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan, is tantamount to giving up control of one’s estate and management of one’s well-being in times of incapacity. This need for an estate plan is critical in case of an accident or illness that renders a partner or spouse incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Even if you are married, planning is critical in the event you encounter resistance to recognize your marital rights.

Happy Family — Winter Haven, FL — The Tessier Law Firm

History of Same-Sex Marriage

In U.S. v. Windsor, the U.S. Supreme Court made federal benefits available to spouses in same-sex marriages and cleared the way for same-sex marriage. In U.S. v. Windsor, the Supreme Court struck down a section of the Defense of Marriage Act (DOMA), a federal law defining marriage as only between a man and a woman. That section of the law denied federal recognition to same-sex couples validly married under state law. The purpose of the Court’s ruling was to ensure that all married couples within a state are treated equally under federal law.

Then in 2015, in a narrow victory, the Supreme Court ruled 5-4 in Obergefell v. Hodges that there is a fundamental constitutional right to marry, which includes same-sex couples. It also ruled that a same-sex marriage valid in one state must be recognized in all states.

While there is still a ways to go with the prevention of discrimination in other areas, such as employment, the LGBTQ+ community achieved a remarkable milestone: Marriage Equality.

Marriage By Any Other Name . . .

Some states and local jurisdictions offer domestic partnerships, civil unions, or similar methods of legal recognition for same-sex couples. These forms of relationships are offered in addition to marriage. The rights and responsibilities of domestic partnerships or civil unions vary substantially from jurisdiction to jurisdiction. For example, in some states such relationships other than marriage do not affect property rights between the parties, but in other states they do. One thing is clear, these non-marriage alternatives will not result in recognition of the relationship by the federal government.

Before committing to a marriage, domestic partnership or civil union, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBTQ+ community. That attorney can counsel you on the implications in your unique situation.

The Problems Estate Planning Solves for the LGBTQ+ Community

An LGBTQ+ couple can avoid numerous problems through proper estate planning:

  • For a married same-sex couple, proper estate planning will ensure they get all the state and federal benefits of their marriage, while avoiding probate, maintaining their privacy and protecting their assets.
  • For an unmarried same-sex couple, proper estate planning will ensure their partner will have legal rights to make health care decisions, protect their rights to inherit assets from each other while avoiding probate, and utilize planning strategies to avoid the burdens of extra taxation when possible.
  • A Living Trust can nominate the spouse or partner as the trustee, i.e. manager of their spouse or partner’s affairs, if he or she becomes incapacitated through illness or accident.
  • The Health Care Power of Attorney can avoid potential problems if a spouse or partner becomes incapacitated. It allows a spouse or partner to appoint their spouse, partner or someone they care about to make health care decisions on their behalf if they are incapacitated. This prevents potential problems where a spouse or partner may not be given access to his or her incapacitated spouse or partner.
  • A proper estate plan will ensure your assets are distributed to whom you want, when and how you want.
  • The Living Trust guarantees privacy, through avoidance of probate and its process of opening court records. This is beneficial for any same-sex couple who wishes for their relationship, assets, and disposition to remain confidential.
  • An estate plan allows you to nominate the person you want to care for and raise any surviving minor children.

LGBTQ+ Resources

GLARP is a non-profit corporation dedicated to encourage LGBTQ+ individuals, partners and businesses to give their time, talent and money to enhance their aging experience through development of LGBTQ+ retirement communities and education on aging issues, which are particularly relevant to their group.

The Human Rights Campaign is America’s largest civil rights organization working to achieve gay, lesbian, bisexual, and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBTQ+ citizens and realize a nation that achieves fundamental fairness and equality for all.

The Advocate is a US-based national gay and lesbian newsmagazine. It includes the GSK pride guide, forums, and links related to articles.

Florida Association of LGBT Lawyers & Allies, Inc. (“FALLA”) was founded in 2014 as a joint effort of LGBT attorneys throughout Florida to form a state-wide organization to augment the efforts of various regional LGBT voluntary bar associations. FALLA provides continuing legal education seminars and presentations as well as social events to help foster and enhance the practice and study of law for LGBT lawyers, law students, judges, paralegals, and legal support services providers, and to stimulate friendships, referral relationships, and professional development for our members and allies in the community.

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LGBTQ

LGBTQ+ Estate Planning FAQs

For current Estate and Gift tax figures, click here.

  • Does same-sex marriage, domestic partnership, or civil union provide all the benefits of heterosexual marriage?

    No. These various relationships affect state law rights and responsibilities only in the states which recognize them. Only marriage is respected by the federal government. As a result, unmarried same-sex couples will not get federal benefits, such as social security survivorship benefits.

  • I am married, why do I need to plan?

    There are still many places and people who are reluctant to recognize your marital rights. Additionally, there are many other important reasons to create an estate plan, such as avoiding probate, minimizing taxes and providing creditor and divorce protection for beneficiaries.

  • I am in an unmarried relationship, do I need to plan?

    You will be treated as “legal strangers” for purposes of state and federal laws. As a result, if you do not have an estate plan, your partner would not have the right to inherit from you, have preference to be appointed your guardian, or many other rights you would assume a spouse would have.

  • Can my spouse or partner handle my financial affairs if I am incapacitated?

    No, you have to do estate planning in order to allow your spouse or partner to have that authority. Specifically, by designating your spouse or partner as agent under a General Durable (Financial) Power of Attorney, he or she can make decisions on your behalf regarding financial matters.

  • Can my spouse or partner make Medicaid decisions for me if I’m sick?

    If you are in a marriage, registered domestic partnership, or civil union, your spouse or partner can make those decisions for you. If you are not in a registered relationship, then state law would recognize your family of origin to make those decisions. However, you can override state law and give your partner the authority to make such decisions by signing a Health Care Power of Attorney. With such a document, when you are unable to make your own Medicaid decisions, your partner can step in and speak for you. Further, this document will designate your partner as your choice to be guardian for you if one needs to be appointed. Without such a designation, your family of origin would have priority for such an appointment.

  • How can I be sure that I will be allowed to visit my spouse or partner in the hospital or assisted living facility?

    If you are married or in a state that recognizes civil unions or domestic partnerships and you register as such, proof of such marriage or registration would be sufficient. Otherwise, you would need to have your spouse or partner designate you as agent under their Health Care Power of Attorney. The agent also can limit other visitors.

  • Can I make decisions about my spouse or partner’s remains?

    Yes, if you are married or in a registered relationship and in a state which recognizes that relationship. However, if you’re unmarried and either, 1) not in such a registered relationship, or 2) you are in a state which does not recognize that relationship, then default state law allows your partner’s family of origin rather than you to make those decisions. However, if your spouse or partner designates you as agent under their Health Care Power of Attorney, then you would be able to make such decisions.

  • Will my spouse or partner be appointed guardian of my minor child?

    Unless your spouse or partner has adopted your minor children, a court would decide what would be in the child’s best interest. Typically, your family of origin and that of the child’s other biological parent are given preference by the court. However, in your last Will, you can nominate your spouse or partner to be the guardian for your minor child. The court will then give weight to your suggestion while weighing what is in the child’s best interest.

  • Is there a tax if I give some of my property to my spouse or partner?

    Maybe. Federal law allows married couples to give each other an unlimited amount of property without gift tax during life or estate tax at death. Federal law does not recognize non-marriage relationships. However, each person gets to give up to his or her tax exclusion during their lifetime to anyone they want. But, any use during lifetime reduces the amount available for transfers at death. In addition, anyone can make a gift to any other person, called the Annual Gift Tax Exclusion, without gift tax and without reducing his or her estate tax exclusion.

  • Are my estate planning documents a matter of public record?

    Only your Will is a matter of public record. Your Revocable Living Trust and your Powers of Attorney are not public. Therefore, by using a Revocable Living Trust you can maintain the privacy of your wishes. Prying eyes of co-workers and neighbors will not have access to the details of your estate plan.

  • Do unmarried couples have to plan more than married couples do?

    Yes. The default in state law, called “intestacy,” is designed with married couples in mind. If a married couple dies without any estate plan, the survivor will get a good portion of the assets left behind. However, if you are unmarried, unless you are in a state that legally recognizes domestic partnerships or civil unions and you have registered as such, the survivor would get nothing. Instead, the family of origin of the unmarried partner who died would get anything in that partner’s name, including bank accounts, real estate, etc.

  • Is a Living Trust a good idea for a LGBTQ person?

    Yes. If you’re part of the Lesbian, Gay, Bisexual, and Transgender community, a Living Trust offers protection for your estate, as well. It will completely eliminate a living probate, a death probate, and you can minimize or eliminate estate taxes. Further, it allows you to override the laws that may fail to recognize the importance of your relationship.

For more information, or to schedule a consultation, call us at 863-220-7927.