LGBTQ Estate Planning FAQs

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.

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. 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.

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 another health care 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. Our Long Beach LGBT estate planning lawyers can help you establish the right strategies.

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.

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.

At its heart, a domestic partnership agreement is like any other contract between two parties, creating the legal rights and responsibilities of the parties during the term of their relationship.  Some provisions that are typically included in a domestic partnership agreement include the following:

• Which party is responsible for household duties
• Which property is to be considered jointly-owned.
• How income will be shared
• How the property will be divided if the relationship is dissolved
• Provisions for protection from your partner’s debts

Like most contracts, a domestic partnership agreement can be customized to address any particular issue the parties may have.  Discuss the terms of your domestic partnership agreement with an estate planning attorney who specializes in LGBT issues, for advice on what to include.

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.

There are many important reasons to create an estate plan, such as avoiding probate, minimizing taxes and providing creditor and divorce protection for beneficiaries.

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.

If you are in a marriage, registered domestic partnership, or civil union, recognized by the state in which you live, your spouse or partner can make those decisions for you. If you are not in a registered relationship, or that relationship is not recognized by your state, then state law would recognize your family of origin to make those decisions. However, you can override state law and give your spouse or 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 medical decisions, your spouse or partner can step in and speak for you. Further, this document will designate your spouse or partner as your choice to be guardian for you if one needs to be appointed. Without such a designation, your family of origin may have priority for such an appointment.

If you are married or in a state that recognizes civil unions or domestic partnerships and you register as such, proof of such 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.

Yes, if you are married or in a registered relationship and in a state which recognizes that relationship. However, if you’re either, i) not married or in a registered relationship, or ii) you are in a state which does not recognize that registered 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.

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.

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.

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.

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’ve not married, or you are in a state that does not recognize domestic partnership or civil union, your survivor would get nothing. Instead, the family of origin of the partner who died would get anything in that partner’s name, including bank accounts, real estate, etc.

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 provides privacy from prying eyes.