Not long ago, it was the case that estate planning attorneys strongly encouraged gay and lesbian couples to create comprehensive estate plans because they were not allowed the same protections as heterosexual couples. Now, in light of the groundbreaking Supreme Court decision in Obergefell v. Hodges, it may seem the worry is over. That is not necessarily the case, however. The reality is, estate planning is still important. Estate planning for Gay seniors may be even more critical.
Overcoming Residual Bias against the LGBTQ 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, LGBTQ individuals may continue to be disinherited, despite now being allowed to legally marry.
Not Every Gay Couple Wants to Marry
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.
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 LGBTQ community to replace strong family bonds that were either lost due to social stigmas the unwillingness to accept their lifestyle. Consequently, 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 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 other healthcare provider will defer to the decisions of the legal spouse. Yet, that automatic deference is not guaranteed with 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.
If you have questions regarding LGBTQ estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
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