Truly Accessible Legal Services Focused On You & Your Goals LET'S GET STARTED

Estate Planning & The LGBTQ+ Community

June 8, 2022

While estate planning is important for any person regardless of their personal identifications, there are some significant aspects of estate planning for any person that identifies as a member of the LGBTQ+ community. Having an updated estate plan will ensure the protection and provision for your beloved partner and/or spouse. Estate planning is critical for all members of the LGBTQ+ community.

While same-gender marriage is legal in all 50 states, there are still harsh prejudices that occur within families that can create complications for both married and unmarried LGBTQ+ couples. An outdated or incomplete estate plan combined with unsupportive family members will only create multiple complications and increased risks when it comes to incapacitation or the eventual death of you or your partner. To make matters worse, if you and your partner are unmarried with an outdated or incomplete estate plan, you or your partner would not hold any rights or protections in the case of your incapacitation or death.

In order to avoid these unfortunate and seemingly unfair situations, you must begin with a will. However, please note that a will is not enough to fully protect you or your partner from incapacitation (especially if you are unmarried and in a committed relationship). You may refer to this blog to read more about why a will is a good start, but not enough. With a will alone, you and your partner are at risk for your will being contested, probate, and severe complications in the event of incapacitation. If any family members are not in support of your relationship, your partner could be at risk for being removed from your home address, no longer allowed to make financial or medical decisions for you, and inevitable court cases (probate or if your will becomes contested) which is very time-consuming, expensive, and emotionally draining for your partner.

So, what else do you need if a will alone does not suffice?

A living trust would be the next step in the estate planning process. You should be sure to leave all desired assets in a trust that your partner is able to control and access. This would ensure that your assets are protected from any future complications like creditors and/or unexpected lawsuits. In this trust you must also prepare for potential incapacitation. You should name the person you would like to make your financial, legal, and medical decisions in the event of your incapacitation. You would mark this person as your medical power of attorney and durable financial power of attorney. Be sure to provide your partner with an HIPAA authorization so they can have access to your medical records and be best equipped to make the best decisions for you. If this is not in place, it becomes the court’s job to appoint the person to make these crucial decisions on your behalf. If the court appointed someone in your family against your relationship, your partner could be left out of these important decisions along with the potential circumstance where your partner would be denied the right to visit you in the hospital. Even if you are married, it is not a guarantee that your spouse would have the entire legal authority to make these important decisions for you. To ensure your partner/spouse has the ability to make these decisions for you, you must grant them the legal authority to do so using medical power of attorney and durable financial power of attorney.

In order to set up the most efficient and effective estate plan for you and your partner, you need to create a living will, living trust, and name your medical power of attorney and durable financial power of attorney. To get started, contact us here at North County Legal. We work to support you through creating an estate plan that accurately reflects both of your desires in the event of death or potential incapacity.