If you’re a LGBTQ+ couple have with minor kids, how do you make sure your partner or spouse, who is not the biological parent, would legally be able to raise your minor child should something happen to you?

If you are a member of the LGTBQ+ community, and are involved in a committed partnership, then estate planning is much more than just planning for death, it’s also about securing parental rights for the non-biological parent of minor children.LT

In Fact, Estate Planning Can Offer an Alternative to Adoption for LGTBQ+ Couples.

Although married same-gender couples now enjoy nearly all of the same rights as opposite-gender couples, there is one key right that’s still up in the air in certain situations, in certain states—and that’s the automatic right to be legal parents.

While parental rights are of course automatically bestowed upon the biological parent of a child, the non-biological parent still faces a number of challenges when it comes to obtaining full parental rights after the parent-spouse dies.

At the time of publishing this article, the Supreme Court has yet to rule on the specific issue of the parental rights of the non-biological parent in a same-gender marriage and there is a tangled, often contradictory, web of state laws governing such rights. If you are a married same-gender couple, for example, some states consider the non-biological partner a legal parent based solely on your marriage, while other states do not.

Given the conflicting nature of state laws, many same-gender couples have turned to second-parent adoption to gain parental rights for the non-biological parent, since the Supreme Court has ruled that the adoptive parental rights granted in one state must be respected in all states. However, it can be extremely difficult for same-gender couples to adopt as some states currently permit state-licensed adoption agencies to refuse to grant such adoption.

This is why, starting with our law firm’s Children’s Protection Plan, LGBTQ+ couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes.

By doing this, if the biological parent becomes incapacitated or dies, their wishes are clearly stated, so the court can do what the parent would’ve wanted and keep the child in the non-biological parent’s care.


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.