Understanding Estate Planning: Why It's Important for LGBTQ Families
You may be wondering why estate planning is so strongly recommended for LGBTQ families. After all, same-sex marriage is legal, and Massachusetts has strong protections in place. But the truth is that many legal assumptions still rely on traditional family models, and those models don’t always match your reality.
A comprehensive estate plan ensures that your partner, children, and chosen family members are recognized and protected in situations where the law may otherwise fall short. That includes:
- Giving your partner or spouse legal authority during a medical emergency
- Ensuring your assets go to the people you choose, not just your blood relatives
- Formalizing parental rights in non-biological parent-child relationships
- Preventing unnecessary conflict or delays in court
Without an estate plan, the state’s default rules apply. That means a partner who isn’t legally married to you could be left out entirely. A child you helped raise may not inherit anything unless legal steps have been taken. And a hospital might deny your partner the ability to make critical medical decisions for you.
These risks are real, but they’re also avoidable. A strong estate plan puts you in control, regardless of how your family is structured.
Key Estate Planning Documents Everyone Needs
Certain documents form the foundation of any estate plan. For LGBTQ individuals and couples, these documents take on even greater importance, especially when family roles or legal ties are not automatic.
Will
A will allows you to spell out who inherits your assets and who should care for your children. Without one, the state uses a formula that may not reflect your relationships or intentions. For LGBTQ families, this is particularly important if you’re not married, have children from prior relationships, or want to include chosen family members in your estate.
You can also use your will to:
- Name a personal representative (executor)
- Appoint guardians for minor children
- Make charitable gifts
- Outline funeral or memorial wishes
Trust
A revocable living trust gives you more control than a will. It allows you to manage your assets while you’re alive and designate how they’re distributed after your death, without the need for probate. Trusts can be especially helpful for:
- Providing ongoing financial support for a surviving partner or spouse
- Protecting children’s inheritance
- Avoiding court intervention
- Keeping your financial affairs private
You can also structure trusts to care for loved ones with disabilities, support charitable causes, or provide for children from a prior relationship.
Health Care Proxy
This document lets you name someone you trust to make medical decisions for you if you’re unable to do so. In the absence of a health care proxy, the law may look to biological relatives first, even if you’re married or have been with your partner for decades.
Designating a health care proxy is critical if you want to ensure that your partner or spouse has the authority to make health-related decisions without delay or legal confusion.
Durable Power of Attorney
A durable power of attorney allows someone you trust to manage your financial affairs if you’re incapacitated. That includes paying bills, accessing bank accounts, filing taxes, and handling property matters.
Without this document, even a spouse may face delays or be denied access to accounts or decision-making authority. For unmarried couples, this document is especially important.
Overcoming Legal Challenges for LGBTQ Families
Even with marriage equality and improved protections, LGBTQ families still encounter legal obstacles, especially when family members, institutions, or other states don’t fully recognize their relationships.
Common issues include:
- Disputes with biological family members who challenge a will or claim decision-making rights
- Non-biological parents who are not legally recognized as guardians
- Health care facilities that delay treatment or restrict access to partners without proper documentation
- Out-of-state property complications when the laws differ from those in Massachusetts
To prevent these kinds of problems, your estate plan must be clear, legally sound, and up to date. We work closely with our LGBTQ clients to ensure every detail is documented, every gap is covered, and every legal relationship is protected. By anticipating potential roadblocks now, we help you avoid painful, time-consuming conflicts later.
Estate Planning Tips Specifically for LGBTQ Families
Beyond the foundational documents, LGBTQ individuals and couples can take additional steps to strengthen their estate plans and reduce legal risk.
Review Your Beneficiary Forms
Assets like life insurance, retirement accounts, and payable-on-death bank accounts pass directly to the named beneficiary, regardless of what your will says. Be sure these forms are consistent with your overall plan and updated after major life events.
Marital Deduction
If you’re married, you can take advantage of the federal and Massachusetts marital deduction, which allows you to transfer assets to your spouse tax-free. This can be a valuable tool for preserving wealth and simplifying transfers, but it only applies to legally recognized spouses. Unmarried partners will need to plan differently, often through lifetime gifting, trusts, or other strategies that reduce estate tax exposure.
Rollover Assets
Surviving spouses can roll over a deceased spouse’s retirement accounts without immediate tax consequences. This benefit doesn’t apply to unmarried partners. In those cases, we may recommend naming a trust as beneficiary or using other techniques to preserve more of the asset’s value.
Parental Rights and Guardianship
Establishing legal parentage is one of the most important steps LGBTQ parents can take to protect their family, especially in cases where only one parent is biologically related to the child.
Adopted Children
For LGBTQ parents, it’s essential to ensure both individuals have legal parental rights. If one parent is not the biological parent, we strongly recommend formal adoption, even in Massachusetts. This legal recognition can be vital in determining custody, inheritance rights, and authority in emergencies.
Naming a guardian in your will is another key step. You can ensure that your children will be cared for by the person you choose, not someone assigned by the court.
Charitable Giving and Legacy Planning
Many LGBTQ individuals want their legacy to reflect the values they hold dear. We can help you support the causes and organizations that matter to you.
Gifting Money
Charitable giving is a meaningful way to reflect your values and leave a legacy beyond your immediate family. Several options are available, each with its advantages:
- Direct charitable bequests in your will or trust allow you to name specific organizations to receive a portion of your estate.
- Donor-advised funds provide flexibility to support multiple causes over time while receiving an immediate tax deduction.
- Charitable remainder trusts can generate income for you or your beneficiaries during your lifetime, with the remainder going to charity.
Each method can help reduce estate taxes while supporting the causes that matter most to you.
To Marry or Not to Marry?
Marriage can offer significant legal benefits, such as automatic inheritance rights, authority to make medical decisions, and favorable tax treatment. However, it also creates legal and financial obligations that may not be right for every couple. If you and your partner decide not to marry, you’ll need to be proactive. A well-structured estate plan can help bridge the legal gaps, ensuring that your partner is protected and your wishes are clearly documented, regardless of your marital status.
Estate Planning for Unmarried Couples
Unmarried LGBTQ couples must take extra care when creating an estate plan. Unlike married couples, you won’t receive automatic legal rights, such as inheritance, medical decision-making authority, or tax benefits, by default. Without proper planning, even long-term partners may be excluded from key decisions or face legal disputes with biological family members.
Make a Will or Living Trust
Your partner won’t inherit from you automatically unless you’ve named them in your will or trust. A trust can also help avoid probate and ensure privacy.
Take Steps to Avoid Probate
Probate can be a lengthy and public process. You can minimize its impact by:
- Holding property in joint tenancy with rights of survivorship
- Naming your partner as a beneficiary on retirement accounts and life insurance
- Using payable-on-death or transfer-on-death designations for bank and brokerage accounts
These simple steps allow assets to transfer directly to your partner without court involvement.
Make a Health Care Proxy and an Advance Directive
This includes both a health care proxy and an advance directive (also referred to as a living will). Together, these documents outline your medical wishes and appoint someone to speak on your behalf if you are unable to.
Make a Financial Durable Power of Attorney (POA)
A POA allows your partner to manage financial matters if you’re incapacitated. Without it, your family may need to go to court to obtain guardianship.
Reduce Federal or State Estate Taxes
Unmarried couples don’t benefit from the marital deduction. We can help you explore alternatives like gifting strategies, life insurance trusts, or charitable planning.
Final Arrangements
Document your preferences for funeral or cremation services. If you don’t, state law may give authority to someone else, often a biological family member who may have different beliefs or values.
Estate Planning for Married LGBTQ Couples
Marriage gives you access to powerful legal benefits, but don’t assume it solves everything. Married LGBTQ couples should still create a complete estate plan to avoid confusion, delays, and unintended consequences.
Check for Outdated Beneficiary Designations
Old forms might still name a previous partner, parent, or friend as a beneficiary. Review these documents regularly to reflect your current wishes.
If Family Conflict is a Factor, Consider a No-Contest Clause
If you believe someone might challenge your will or trust, a no-contest clause can act as a deterrent. It states that anyone who contests the plan and loses receives nothing.
Account for Children in Your Estate Plan
Whether your children are adopted, biological, born through surrogacy, or from a previous relationship, it’s important to ensure they’re fully protected in your estate plan. You should clearly name guardians for minor children in your will to avoid uncertainty if something happens to you. You can also set up trusts to manage their inheritance, which allows you to decide when and how the funds are distributed. A well-structured plan ensures your children are cared for emotionally, legally, and financially, according to your wishes.
The Standard Estate Planning Questions Still Need to Be Answered
LGBTQ families may face unique challenges, but the heart of estate planning remains the same. You’ll still need to answer:
- Who should inherit your assets?
- Who do you trust to make decisions for you?
- How do you want to be remembered?
We’ll guide you through these questions, helping you make thoughtful choices and putting your decisions into legally binding documents. No matter your family’s shape or structure, your plan should reflect the people and priorities that matter most.
Contact an Experienced Southeastern Massachusetts Estate Planning Attorney
At Surprenant, Beneski & Nunes, we believe that every family deserves a secure future, on their own terms. We’re proud to serve LGBTQ clients across Southeastern Massachusetts with estate plans that are clear, customized, and compassionate.
We’ll take the time to understand your relationships, your concerns, and your vision for the future. Whether you’re married, unmarried, raising children, or planning your legacy, we’re here to help. Contact us today to schedule a confidential consultation. Let’s build a plan that gives you peace of mind and protects what matters most.
