LGBTQ+ Estate Planning

Whether you are single, married, or in a domestic partnership, LGBTQ+ estate planning requires an understanding of the unique legal issues that impact the LGBTQ+ community.

Without estate planning, unmarried couples may have no legal rights if one partner becomes disabled, incapacitated, or passes away.  Relatives can take over medical and financial decisions, and a deceased partner’s assets may pass to unintended family members instead of the surviving partner. Having the correct legal documents gives unmarried couples many of the same rights that married couples have.

In 2015, I had the privilege of co-chairing Colorado’s first LGBTQ+ Law Institute, a two-day seminar for attorneys whose practices include LGBTQ+ issues. Some of the topics covered were the fall of DOMA, the groundbreaking Edie Windsor case, employment discrimination, estate planning, and immigration issues unique to the LGBTQ+ community.

Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court issued its opinion in Obergefell v. Hodges, holding that same-sex married couples are entitled to equal protection under the law and, therefore, these marriages must be recognized nationwide. This ruling effectively nullified all state laws banning same-sex marriage.

After the Obergefell v. Hodges decision, same-sex couples have the same spousal rights that opposite-sex couples have, such as:

• Being included in adoption and child custody laws;
• Priority in matters concerning an incapacitated spouse’s care;
• Priority to be your spouse’s guardian or conservator if he or she is incapacitated;
• Having spousal survivorship rights under state pension or other retirement benefits;
• Being able to inherit from your spouse, even if your spouse dies without a Will;
• Priority in the event someone contests a Will or Trust after death; and
• Filing taxes jointly as a married couple.

Couples Should Still Be Proactive

Simply because states now recognize marriage does not mean couples do not have to take control of their death and incapacity planning and clearly state their wishes in enforceable legal documents. All the reasons for proactive estate planning apply just as much to unmarried couples and same-sex married couples as they do to opposite-sex married couples:

• Expressing their wishes concerning their medical care during periods of incapacity (through powers of attorney);
• Structuring the distribution of their property, possibly in certain protective Trusts, for the benefit of their surviving spouse and children after death;
• Establishing Trusts to preserve privacy and avoid the delay and expense of guardianship or probate proceedings during incapacity and after death;
• Providing clarity and discretion to a Personal Representative (“Executor”) or Trustee to make strategic tax decisions after death;
• Providing for family members other than a spouse or child through their estate plans;
• Making gifts to religious or other charitable organizations through their estates; and
• Allowing orderly operation and transition of businesses or professional practices through incapacity or after death.

Obergefell v. Hodges hopefully represents the last word on same-sex marriage, elevating these relationships to equal stature with other marriages.  However, certain U.S. Supreme Court justices have expressed their desire to abolish or limit same-sex marriage if the right case comes before the Court.

While same-sex married couples are now entitled to equal protection under every state’s laws, the efficacy of those laws in ensuring dignity during incapacity, and orderly and structured property distribution after death is still limited for all couples. Families should always take control of their planning and leave as little to state law interpretation as possible, which is best accomplished through careful estate planning with an attorney who is familiar and comfortable with LGBTQ+ estate planning.