There was a time when estate planning lawyers strongly encouraged gay and lesbian couples to establish comprehensive estate plans because they were not allowed the same protections as heterosexual couples. But, with the groundbreaking Supreme Court decisions of recent years, the estate planning needs of gay seniors have changed. Nevertheless, estate planning is still important, particularly so for the gay seniors in our community.
Overcoming bias against the LGBT community
Until very recently, gay marriage was illegal in most states. Not only that, it was considered taboo or immoral by many. While the law may have changed, the personal beliefs of many, still have not. So, even though gay spouses may now have a protected right to inherit from each other, the social stigma with which they have lived for years still exists. In some unfortunate cases, families have disowned or ostracized members who are openly gay. Therefore, without proper estate planning, LGBT individuals may continue to be disinherited, despite now being allowed to legally marry.
Not all gay couples want to get married
Another reality is that, like many heterosexual couples, there are gay couples who do not actually want to get married. Without a legal marriage, a gay partner is not considered an heir. Yet, it should not be necessary for couples to get married simply to be able to inherit from one another. Because we never know when our last day will come, it is important to plan for the future with an estate plan, regardless of whether or not marriage is on the horizon. Creating a will or a trust allows you to choose how your assets and personal effects will be distributed upon your death.
Consider a domestic partnership agreement
When two individuals live together and share their lives, but are not married, they are involved in a “domestic relationship.” This term applies to all couples – heterosexual or gay. A domestic partnership agreement, then, is like a prenuptial agreement for a couple that does not intend to become legally married. Same-sex couples often create these agreements because they cannot legally marry, although they would if they could. In states that recognize domestic partnerships, the domestic partnership agreement can be registered, which allows the same-sex partners to obtain many of the same rights and privileges as heterosexual married couples.
Planning for alternative families
As a result of families refusing to accept their gay members over the last few decades, many gay seniors have developed strong ties to their so-called “chosen families.” These are the people selected by members of the LGBT community to replace strong family bonds that were either lost due to social stigmas the unwillingness to accept their lifestyle. As a result, some gay seniors who are now permitted to marry their long-time partners may not consider the fact that even once married, those same family members may still harbor the same bias or unwillingness for acceptance.
The benefits of using a power of attorney
In the heterosexual community, there are many horror stories of couples who failed to establish powers of attorney or advance directives, which delineate their end-of-life wishes. The unfortunate consequence is that the family is then left to make those impossible decisions, and often do not agree on how to proceed. In most cases, the hospital or some other healthcare provider will defer to the decisions of the legal spouse.
Yet, that automatic deference is not guaranteed to same-sex spouses. With a power of attorney, you can make your intentions clear to the world by authorizing your same-sex spouse to be in charge of those difficult decisions, should that time ever come. That is true regardless of whether you are married or not. Let our estate planning lawyers help you with your questions.
How to keep your estate plan private
It is understandable that some members of the gay community may be concerned about their privacy when it comes to their estates and to whom they choose to leave their possessions. Actually, privacy is a common concern for the majority of clients, regardless of their sexual orientation. A revocable living trust is a private contract between the client and the chosen trustee. A trust does not have to be filed in court like a will does. Essentially, it is the probate process that makes your estate plan open to the public. With a living trust, only your trustee will have knowledge of its terms.
Join us for a free seminar today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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