Every adult should have at least a basic estate plan in place. For members of the LGBTQ community, both the need for comprehensive estate planning, and the benefits derived from that plan, are increased. Understanding why estate planning is so important for LGBTQ couples may help encourage you to get started on your plan or schedule a review if you already have a basic plan in place.
The Road to Equality
The road to equality has certainly been a long and bumpy one for LGBTQ couples. Not long ago, laws across the country banned same-sex couples from marrying. Moreover, almost all state and federal benefits were denied to a same-sex couple even if they were legally married in one of the few states that allowed same-sex marriage. In 2015, however, the Supreme Court of the United States, in the landmark case of Obergefell v. Hodges, finally declared that states must allow same-sex couples to marry and must recognize same-sex marriages from other states. That victory represents much more than just the ability to legalize a relationship. The right to marry also came with numerous important practical and legal benefits, many of which were historically only available to opposite-sex couples. While winning the right to marry will forever be remembered as one of the greatest moments in LGBTQ – and American – history, there is still work to be done to achieve complete equality. In the meantime, estate planning remains a crucial tool for LGBTQ couples to provide some of that equality that the law, and society, have yet to provide and to ensure that their wishes are honored.
Problems LGBTQ Couples Still Face
Winning the right to marry was certainly a major victory; however, it did not resolve all of the problems faced by the LGBTQ community in the past. For example, marriage means that your spouse will inherit from your estate by law. It also gives your spouse rights to many state and federal benefits to which you are entitled, such as veterans benefits and Social Security retirement benefits. It does not, however, open the door to all such benefits nor does it force family members or even businesses to acknowledge your relationship. One of the biggest concerns for LBGT members continues to be the attitude of family members. If your family has not yet accepted your same-sex marriage or relationship, your spouse/partner could be shut out of the decision-making process entirely in the event of your incapacity or death if you failed to plan ahead. Not only could this result in a painful rift in the family, but it could also spark a costly and bitter legal battle. In addition, if you have minor children, the ability to legally marry doesn’t always resolve issues related to those children. Your spouse may still need to legally adopt your children to have full legal parental rights.
How Can Estate Planning Help?
The good news is that estate planning can help with many of the issues still faced by LGBTQ couples. For example, incorporating the following estate planning tools into your plan can help prevent and/or resolve many of the remaining issues:
- Joint ownership – by titling property using the right type of joint ownership (with rights of survivorship), your interest in the property will automatically transfer to your spouse/partner upon your death without the need for the property to go through probate.
- Revocable living trust — frequently used as part of a broader incapacity plan, a revocable living trust lets you shift control of assets held in the trust to your designated successor Trustee in the event of your incapacity.
- Beneficiary designations – designating accounts and other assets as “Payable on Death (POD)” allows you to pass your interest in the assets directly to your spouse/partner upon your death without the need for the asset to go through probate.
- Advanced directives – executing an advance directive provides your designated Agent with the legal authority to make healthcare decisions for you in the event you are unable to make them at some point in the future.
Contact a Westport LGBTQ Estate Planning Attorney
For more information, please join us for a FREE seminar. If you have additional questions or concerns about estate planning advice for LGBTQ couples, contact the experienced LGBTQ estate planning attorneys at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.