Estate Planning for LGBTQ Families

While it’s true that since 2015, when same-sex marriage became legal throughout the country, life became increasingly manageable for more than a million couples and families in the United States. Nonetheless, there are still complexities relative to LGBTQ estate planning that require the services of a skilled estate planning attorney. At Surprenant & Beneski in Southeastern Massachusetts, we are committed to providing comprehensive, inclusive assistance to all of our LGBTQ clients, always tailored to their particular needs.

Areas of Concern for All Families Planning for the Future

In our practice, among other services, we help our clients to:

  • Create wills to designate beneficiaries and guardians for their minor children 
  • Set up trusts to avoid probate, protect assets, and for any number of other reasons, such as providing for family members with special needs
  • Prepare for possible incapacity by making certain they will be eligible for Medicaid if needed for extended nursing home care 
  • Work out efficient means of business succession 
  • Create legal documentation necessary to navigate incapacity (e.g. Health Care Proxy)

Special Problems for LGBTQ Families 

Although all of the usual services listed above also apply to LGBTQ families, these families often have other needs that require special planning, including:

  • Adoption by non-biological parents, which if possible, offers the greatest protection of the relationship because in LGBTQ families there is a greater likelihood that only one parent is blood-related to the couple’s children
  • Making certain that your spouse or partner is the designated guardian of your child whether or not your partner is a biological or adoptive parent*
  • Navigating strained relationships with family members who remain unaccepting of your family unit, possibly causing you to rethink your choice of executor, beneficiaries, or guardian of your children if you both pass away
  • Dealing with legal documents created before 2015 that have to be updated 

*If there is a third parent involved, custody will be more complicated

Sadly, LGBTQ couples are more likely to, according to a Pew Research Survey, to: 

  • Have their wills contested by a relative who does not accept the validity of their union
  • Have custody battles with other relatives over custody of non-biological children after one spouse dies or becomes disabled
  • Have family members who attempt to interfere with medical and financial decisions made by the in-law spouse

Although the documents estate planning attorneys prepare for all couples will be similar in structure, lawyers who plan estates for LGBTQ families must be savvy enough to review and make necessary changes to any documents originally created before 2015, ensuring that the language is consistent with current laws so that your rights are fully protected. Updating legal documents is critical to having your present wishes carried out.

How Surprenant & Beneski Can Protect You, Your Spouse, and Your Children

In order to make certain your relationship is validated, whether you and your partner are married or not, our financial planning lawyers will:

1. Make Sure You Have a Will

For reasons not entirely clear, LGBTQ couples have considerably higher percentages of spouses without wills, especially if they have a high net worth. Having no will makes you more vulnerable to having your wishes about your primary beneficiary questioned, particularly if you are unmarried. This is more likely to affect LGBTQ couples because they are still (in spite of the legalization of same-sex marriage) less likely to be married.

2. Make Sure You Have Documentation to Protect Your Rights During Medical Crises

Though couples, especially young couples, too often feel that illness or injury preparations do not apply to them, the few moments it takes to be critically injured in an accident or given a grim diagnosis can be life-altering. This is why it is essential to have the following documents in place early on so that you have incontestable rights to manage your partner’s finances and to make medical decisions if your partner becomes unable to do so.

The following documents will always stand you in good stead:

  • Durable financial power of attorney 
  • Health care proxy
  • HIPAA privacy authorization form (so medical information can be disclosed)
  • Advanced Directive (Living will) to designate which types of end-of-life care you want to receive

3. Ensure that Your Spouse or Partner Will Inherit Your Home

Your estate planning attorney will discuss with you the most practical way of ensuring that your spouse or partner will inherit your home if you pass away. This is usually best achieved by having both names on the deed or having joint tenancy with right of survivorship.

As you can see, estate planning, a complicated process at best, can become more challenging when you are a member of the LGBTQ community. Your best bet is to work with the experienced team of Surprenant & Beneski where we are well aware of the distinct difficulties you face and how to address them effectively and empathically.