Pride and Planning: Estate Planning for LGBTQ+ Couples
Compliments of the Slaton Schauer Law Firm, PLLC,
Written By: The American Academy of Estate Planning Attorneys
Edited By: Andrew T. Slaton-Freeman
Let’s consider a topic pertinent for June: estate planning for LGBTQ+ partners. Many same-sex couples never historically focused on planning either their estate or finances because they felt such planning was pointless due to unfair legal structures. Legal workarounds were highly dependent on both specific facts and the jurisdiction in question. This meant that many people died intestate (without a will). One injustice related to these cases was the lack of memorialization– of permanence– of the legacy many same-sex couples built for themselves. Many people first lost their life partner and then they often lost their assets, even their homes, to the deceased partner’s parents or siblings.
Obergefell v. Hodges, a 2015 Supreme Court case, extended the right of marriage to gay couples. Since then, same-sex couples are seeing for themselves the legal benefits that opposite-sex couples have always had.
II. Financial Benefits
For instance, Social Security benefits are now available for same-sex married couples, including the right to collect Social Security retirement or disability benefits from a spouse’s earnings. A second benefit is found in estate planning. Even in the case of intestacy, married same-sex couples no longer risk losing their assets to their deceased spouse’s family of origin. Your estate planning lawyer can ensure you and your spouse avoid intestacy, but they can also show you other tax saving options that provide further protection for the surviving spouse.
III. Power of Decision
One crucial aspect of estate planning is the power of attorney. These documents allow a spouse to make medical or financial decisions on behalf of the spouse who is incapacitated. Being married does not automatically result in such power. Powers of attorney are legal documents that are part of a complete estate plan. For example, if you have a bank account that is in your name only, an accident or illness does not put your spouse into the position of overseeing that account. Only the power of attorney would allow decision making rights to transfer to whomever is named in the document.
Another significant document is the living will or healthcare directive. You can use this document to ensure your spouse (or another person you designate) can consent to medical treatments on your behalf. These are important because when an LGBTQ+ person is medically incapacitated, there are often disagreements between the patient’s family and the person’s partner. Those disagreements or arguments are moot when a proper healthcare directive is in place.
It’s important not to assume everything for LGBTQ+ couples was magically “fixed” by the Supreme Court’s 2015 ruling. We encourage you to meet with a qualified estate planning attorney who can help to ensure that both your legacy and your assets are fully protected.