Three Estate Planning Issues LGBTQ Couples Should Prioritize
By: Barry E. Haimo, Esq.
December 16, 2020
Proper estate planning is something everyone considers at some point, especially when they have children. But despite the strides that legislators have made in recent years, in today’s uncertain and seemingly ever-changing climate, getting your estate in order can be even more critical for LGBTQ families.
With same-sex marriages legally recognized, LGBTQ estate planning has largely been greatly simplified. However, there are still scenarios that may require specific planning strategies to ensure your goals and wishes are met.
For instance, one Pew Research Survey revealed that 40 percent of LGBTQ adults have experienced rejection from close family members or friends due to their orientation. This can have real and actual ramifications on their estate plans.
Family Rejection: The Impact on LGBTQ Couples’ Estate Planning
If you are in a same-sex partnership, the reality is your estate could be more vulnerable to unsupportive relatives than you may think.
Some of the most common issues that arise when same-sex couples’ estate plans are in question include but are not limited to:
- Wills that are contested by family members that do not recognize the marriage
- Custody battles that ensue involving non-biological children if the biological parent passes or becomes incapacitated
- Interference occurring with a same-sex spouse’s medical and financial decision-making abilities for their partner
These are just some issues that can arise more for LGBTQ couples than others while planning an estate together. But there are a series of considerations that you can make to fortify your efforts no matter the obstacles you face.
Outline Exactly Where You Expect Your Assets to Go
Regardless of whether anyone recognizes your relationship, your family, and their importance, the law will always recognize a properly executed will.
Furthermore, beneficiary designations nearly always supersede intestacy laws or what any will says. So be sure that every bank account, every retirement fund, and every insurance policy you have names exactly who you wish to be the recipient when the time comes.
Establishing a Trust
If you are particularly concerned about family contesting these allocations, you may want to consider establishing a trust. While this is not the best option for everyone, this strategy offers superior asset protection capabilities and is an option worth discussing with an experienced estate planning attorney.
Clearly Address Medical and Financial Decision-Making
LGBTQ partners tend to be pressed far more often than straight spouses when it comes time to make difficult medical and financial decisions for their incapacitated or noncommunicative spouse. For this reason, every couple should document their wishes on these matters.
The four documents you should absolutely complete and maintain are:
- A durable financial power of attorney
- A healthcare proxy designation
- The HIPAA Privacy Authorization form
- A healthcare directive
Squarely Close the Door on Potential Custody Battles
Children with same-sex parents, whether born or adopted into their family, must be specifically identified within all estate planning documents. Designate guardianship so that a judge isn’t the one left deciding who is best to raise your child(ren).
In cases where neither or only one of the parents is biological, formal adoption is strongly recommended to establish a legal relationship. It also secures the smooth passage of assets from parent to child in the same way that a biological relationship would.
These are only three of the many estate planning hurdles unique to LGBTQ families. Partnering with an experienced Florida estate planning firm is the most effective way to secure your family’s future.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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