For members of the LGBTQ+ community, and their supporters, much has changed for the better over the last several decades. Just recently, one of the hardest fought battles was finally won – the right of same-sex couples to marry. With that victory finally in hand, members of the LGBTQ+ community often ask if LGBTQ+ estate planning remains necessary now that same-sex couples can legally marry. Let’s explore estate planning for members of the LGBTQ+ community.
Recent LGBTQ+ Victories
Whether you are a member of the LGBTQ+ community or a supporter, you undoubtedly know all about the struggle for equality. Not long ago, laws across the country banned same-sex couples from marrying and almost all state and federal benefits refused to recognize a same-sex marriage even if it was legally performed in one of the few states that allowed them. Not long ago, however, one of the most important battles was finally won when the Supreme Court of the United States finally declared that states must allow same-sex couple to marry and must recognize same-sex marriages from other states. That victory represents much more than just the ability to legalize a relationship. As members and supporters know, the right to marry also comes with numerous important practical and legal benefits that have historically only been available to opposite sex couples. While winning the right to marry will forever be remembered as one of the greatest moments in LGBTQ+ – and American – history, there is still work to be done. Consequently, it remains important for members of the LGBTQ+community to protect themselves and those they love through careful estate planning.
Why Is Estate Planning Still Important?
When it comes to estate planning, every adult needs one. That need is intensified, however, if you are part of the LGBTQ+ community. For example, although same-sex marriage is now legal in every state, some benefit programs still do not recognize a same-sex spouse’s rights, highlighting the need to have a well thought out estate plan in place that confers those rights on your spouse. Furthermore, although society is now much more accepting of LGBTQ+ relationships, individual family members may not be. If that is the case in your family, your spouse could be shut out of the decision-making process entirely in the event of your incapacity or death. Your wishes could be ignored completely if you do not plan ahead to ensure that they are honored.
What Should Be in Your Plan?
As a member of the LGBTQ+ community, your comprehensive estate plan should include tools and strategies such as:
- Last Will and Testament – in your Will you can gift assets to anyone you choose. Therefore, use your Will to leave some, or all, of your estate to your spouse/partner.
- Joint ownership – by titling property using the right type of joint ownership (with rights of survivorship), your interest in the property will automatically transfer to your spouse/partner upon your death without the need for the property to go through probate. However, there are important limitations using this method and should not be pursued without first getting the advice of an experienced and qualified estate planning attorney.
- Revocable Living Trust — frequently used as part of a broader incapacity plan, a revocable living trust lets you shift control of assets held in the trust to your designated successor Trustee in the event of your incapacity.
- Retirement plan – by incorporating your retirement plans into your estate plan you can rest assured that both you and your spouse/partner will have sufficient assets to liv comfortably during your “Golden Years” and that your spouse/partner can access those assets of something happens to you.
- Advanced directives – executing an advance directive provides your designated Agent with the legal authority to make healthcare decisions for you in the event you are unable to make them at some point in the future.
Please download our FREE estate planning checklist. If you have additional questions or concerns about LGBTQ+ estate planning, contact us at theNorthern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.