Not so long ago, estate planning for LGBTQ+ clients was more cumbersome, as the federal government and most states did not recognize the relationships of all their citizens. Following Obergefell v. Hodges in 2015, the federal government now recognizes same-sex marriages, and with that, allows for the same types of legal protections that only opposite-sex couples could once claim. Some of the benefits that can now be claimed by same-sex married couples are:
- No limitations on gifts or transfers of property to their spouses.
- The surviving spouse can claim the right to the decedent’s unused estate tax exclusion amounts.
- Taking title to property as tenants by the entirety.
While married couples, same-sex or otherwise, are afforded legal protections under the law, there is still a large percentage of LGBTQ+ couples who are not married, and therefore, are not afforded the same protections. According to a 2017 Gallup Poll, only 10.2% of LGBTQ+ Americans are married to a same-sex spouse. Those numbers are surely greater today, however, it leaves a staggering amount of people unprotected when it comes to estate planning.
What does estate planning entail? And how can it be used to ensure that the wishes of an LGBTQ+ individual are followed?
Last Will and Testament and/or Revocable Living Trust
A Last Will and Testament, at its bare bones, is a document which provides guidance to a court in how a person would have their estate (assets owned individually at death) passed to others. Through this document, a person would pick their beneficiaries and could nominate their partner as the Personal Representative.
A Revocable Living Trust can establish the client’s partner as the trustee. What this means, is that the partner can be the person who oversees the individual’s assets after death or incapacitation (for assets that were put into the trust). Done right, the trust will provide privacy and the avoidance of probate and the court process.
Health Care Surrogate
The Health Care Surrogate allows for the appointment of another individual, in this case, a partner, to be named as the person authorized to make health care decisions for the individual should that person be unable to make their own decisions. The utilization of this document would allow an individual to appoint anyone they choose, overriding any next-of-kin arguments from family members. Like all the estate planning documents, this one is important not just for unmarried persons, but married people as well.
Power of Attorney
The Power of Attorney allows for one person to act in financial matters for another. An example of this could be accessing someone’s solely-owned bank account or signing a check. When utilizing this document, a same-sex partner (or anyone) can act in the stead of the individual who granted the power. In Florida, the power is durable, meaning that it takes effect the moment it is signed, so be mindful of that when choosing your agent.
LGBTQ+ and Children
One of the most important ways estate planning can be of assistance to the LGBTQ+ community is with regards to children. If the couple goes through the adoption process, both parents will be the legal parents of the child. However, a number of LGBTQ+ persons do not adopt, but bear children through donors and surrogates. Usually, this process creates one partner as the biological and legal parent and the other is not. Under today’s rules, without adopting the child, the other parent will not be afforded the same rights.
Estate planning can assist same-sex couples who have not gone through the adoption process. Through the grant of Power of Attorneys and Health Care Surrogates for the Minor Child, the legal parent can grant the other parent the rights to make decisions for the child. Through trusts and wills, the other parent can ensure that their child will be able to inherit from them should they pass. In the case of a trust, it will also ensure that the other parent can manage the assets for the child should the legal parent die. And finally, with Guardianship documents, the legal parent can ensure that should they pass away, the other parent would become the legal guardian for the child.
Problems Estate Planning Solves
- For a married same-sex couple, it will ensure the state and federal benefits of their marriage, and if desired, can be used to avoid probate and maintain privacy.
- For an unmarried same-sex couple, proper estate planning will ensure that your partner will have the legal rights to make health care decisions, financial decisions, and protect their right to inherit from you.
- For a same-sex couple (married or unmarried) with children, it helps ensure the children will be able to inherit from both parents as well as be able to be cared for (legally) by both parents.
About Rosenthal Meyer, PLLC
Rosenthal Meyer, PLLC was founded by attorneys Matthew Rosenthal and Justin Meyer, who share the same commitment to providing client-centric legal services, with a concentration in business law, wills & trusts, probate, and real estate. The multi-state community law firm prides itself on its experience, approachability, caring about the outcome of the situation, and providing legal solutions that work. Their focus is on legally protecting clients through the evolution of their business, and through all stages of life. They take pride in getting involved with the communities they serve and building long-term relationships. For more information, visit https://rosenthalmeyer.com.
