For the LGBTQIA+ Community--Estate Planning is Crucial
Whatever your orientation, estate planning is crucial to protect your loved ones. In the LGBTQIA+ community, estate planning can legally protect against discrimination even if others are reluctant to recognize your relationship and your desire to permit your partner to make decisions for your care should you become unable to. Estate planning can also create mechanisms that financially provide for your partner as well.
How Obergefell v. Hodges Impacted Same-Sex Couples
In 2015 the case of Obergefell v. Hodges made it a fundamental constitutional right to marry, including same-sex couples. The US Supreme Court's decision to recognize same-sex marriages opens up many previously unavailable legal tools and tax savings that had only been available to "traditional" legally recognized marriages. The Supreme Court ruling further stated that a valid same-sex marriage in one state must be recognized in all states. Note that non-marriage alternatives will not result in the federal government's recognition of the relationship.
These alternatives include adults in domestic partnerships and civil unions, which are federally not legally recognized as marriage. However, these couples can still receive partnership decision-making privileges and benefits. To do so requires a different type of planning. However, your partnership is characterized, creating a legal framework to protect yourself and your partner is possible.
A married same-sex couple with proper estate planning will receive all state and federal benefits of marriage. Federal benefits include the unlimited marital deduction for federal estate and gift taxes. An unmarried same-sex couple who cannot receive these marital tax benefits can still ensure their partner will receive the legal right to inherit each other’s assets with other legal mechanisms. They will also be able to make health care decisions for one another; however, the legal framework will differ from the legally married couple.
Revocable Living Trust for the LGBTQIA+ Community
In either marriage or a cohabitation arrangement, a revocable living trust permits the couple to nominate each other as trustee, allowing the spouse or partner to manage their loved one's financial affairs if they become incapacitated. A durable financial power of attorney is another solution to manage the affairs of a loved one if they become incapacitated. The rules and requirements of a durable financial power of attorney vary from state to state, so it is necessary to review and reconfigure this document if you relocate. In either an LGBTQIA+ marital or cohabitation living arrangement, a health care power of attorney allows you to appoint your partner to make health care decisions on your behalf should the need arise.
Advance Healthcare Directive for the LGBTQIA+ Community
It is imperative to include a HIPAA privacy authorization form for your health care power of attorney or trustee. The form permits medical and healthcare professionals to disclose pertinent health information and medical records to a partner. A durable health care power of attorney can prevent biological family attempts to interfere with a spouse or partner's ability to make medical decisions for their loved one. A legally binding durable health care power of attorney can prevent family interference, no matter how well-intentioned it might be.
The Importance of a Will for the LGBTQIA+ Community with Minor Children
Should a same-sex couple have children, where at least one parent is non-biological, a will is a legal tool to address guardianship of minor children. Your will is the only place to define guardianship of children and name an executor. Many custody battles over LGBTQIA+ parents’ non-biological children occur among families after the biological parent's death or incapacity.
It is essential to address any previous LGBTQIA+ committed relationship structures before finalizing your estate plan to tie up any loose ends. If you were in a legal union before marriage was an option, you are subject to the patchwork of prior state laws that can have unintended consequences for new estate planning. Before 2015 some same-sex couples married in states that recognized their marriage only to move to states that did not. Believing that their nuptials were non-binding in the states that did not recognize same-sex marriage, these couples may have split up without ever legally dissolving their marriage. Some states even automatically converted registered civil unions or domestic partnerships into legal marriages. The fallout is there are now LGBTQIA+ people who are married and unaware that they are open to the possibility of future claims against their estate from a previous marriage. All previous domestic partnerships, civil unions, or other legal arrangements must be untangled and resolved to protect against these possibilities.
In general, studies find that the LGBTQIA+ community tends to lag behind others in having a will and revocable living trust. These documents are significant for non-married LGBTQ+ people in a seriously committed relationship. State laws will default to granting rights to biological family members absent legal documents to the contrary.
Specific issues unique to the LGBTQIA+ community can potentially make planning more complex. We would be happy to meet with you to discuss how you can properly document your wishes regarding the inheritance of your property, who can make decisions for you if you're unable to, and who would care for your children should the need arise. And if you are outside of Florida, please contact an experienced Estate Planning or Elder Law Attorney (preferably one that is Board Certified) to assist you.
Jason A. Penrod is only the 20th attorney to be Board Certified as an Elder Law Expert by the Florida Bar and the National Elder Law Foundation. He is the founder of Family Elder Law (www.familyelderlaw.com) which has offices in Lakeland, Lake Wales, and Sebring, Florida.