There are many issues that LGBTQ+ couples face when a partner dies or becomes incapacity and we’re going to address the problems and talk solutions, right now…
So whether you are married or in a committed partnership, estate planning is about much more than planning to protect your spouse or partner in the event of your death—it’s about protecting them in the event that you’re living, but incapacitated too. Especially if you are a member of the LGBTQ+ community, estate planning is even more critical.
Although same-gender marriage is legally recognized in all 50 states, long-held prejudice at both the political and family level continues to create complications for both married and unmarried same-gender couples. For example, suppose you have family members who are opposed to your marriage. In that case, your estate plan may be more likely to be disputed or even sabotaged by unsupportive relatives. This could mean that family members are more likely to contest your wishes, or it might result in custody battles over non-biological children in the event of the biological parent’s death.
Unsupportive family members may even try to block the ability of your partner to make medical decisions on your behalf should you become incapacitated by accident or illness. Even worse, your family members could try to kick your partner out of a shared home, if you are in an accident or fall ill, or they may even block your partner from seeing you if you require hospitalization.
Additionally, if you and your partner are unmarried, your partner would have no rights or protections should you become incapacitated or die without any planning in place, which leaves your partner vulnerable to several potentially dire risks.
Given these issues, if you are in a committed partnership, you should be aware of several unique considerations regarding your estate plan. While you should meet with an estate planning attorney to address your specific circumstances, here are a couple of issues to keep in mind.
The First Issue You May Come Across is That a Will — Alone — Might Not Be Enough To Protect Your Loved One
Suppose you’re unmarried and die without any estate plan. In that case, your property will be shared with your surviving family members according to your state’s laws through intestate succession. The state’s laws would not protect your unmarried partner, so if you want your partner to receive any of your assets upon your death, you need to—at the very least—create a will.
However, having an estate plan that consists solely of a will often doesn’t provide sufficient protection for your spouse or partner, and we often recommend that same-gender couples—even those who are married—create both a will and a trust for a variety of reasons.
Most importantly, a will does not work in the event of your incapacity, which could happen at any time before your death. Should you become incapacitated with only a will in place, your partner or spouse may not have access to needed funds to pay bills, or they might even be kicked out of your home by a family member whom the court appointed as your guardian during your incapacity.
Furthermore, upon your death, a will is required to go through the often long, costly, and potentially conflict-ridden court process known as probate.
On the other hand, if your assets are properly titled in the name of your trust, then those assets would pass directly to your partner or spouse upon your death, without the need for probate and all of that court and attorney involvement that goes along with it.
Look, avoiding probate is especially important if your relationship is not supported by one or both families. Because if a family member doesn’t support your relationship, they are more likely to contest your will during a probate court proceeding.
This could prevent your surviving partner or spouse from receiving assets you left in your will. This conflict in probate court will further prolong this probate process potentially up to years, significantly drive up the costs your loved one would have to pay, and completely interrupt their ability to grieve and process the fact that they just lost you –– their most beloved.
Even if your loved one was able to get through the probate process and get ownership of your assets, typically, most traditional estate planning law firms fail to protect the assets your loved one inherits from future divorces, lawsuits, and bankruptcies.
The Second Issue You May Come Across is Failing to Properly Plan for Your Loved One’s Incapacity.
Like I said earlier, estate planning is not just about planning for your eventual death; it’s also about planning for your potential incapacity due to injury or illness. Proactive estate planning allows you to name the person (or persons) you would want to make your healthcare, legal, and financial decisions for you if you are incapacitated and unable to make such decisions yourself through a medical power of attorney.
If you haven’t planned for incapacity, the choice is then left to the court to appoint the person(s) to make these financial and healthcare decisions on your behalf. If you’re unmarried and the court typically will first appoint one of your relatives as your guardian.
That means your unsupportive family could leave your partner totally out of the medical decision-making process and even deny them the right to visit you in the hospital. And even if you are married, it’s not guaranteed that your spouse would have the ultimate legal authority to make such decisions if you had no documentation in place and an unsupportive family member tries to contest your spouse’s right to be your legal guardian to make these decisions.
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 a financial power of attorney. That way, your partner or spouse would be able to visit you in the hospital, make healthcare decisions on your behalf, and be able to have access your financial accounts, make sure the bills and taxes are being paid, as well as being able to have access to funds for their well-being while you are incapacitated –– regardless of what any unsupportive family members may say.
As an estate planning law firm, we can support you in putting in place a robust estate plan that will ensure that your partner/spouse has the maximum rights possible if you are ever struck by a debilitating accident or illness.
This article is a service of estate planning attorney Elliott Feldman and the Elliott Feldman Law Group. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Prosperity Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Prosperity Planning Session and mention this article to find out how to get this $750 planning session at no charge.