Though estate planning is important for everyone, it is especially vital for the our community. Prior to marriage equality, the results for people who did not plan were devastating; partners were precluded from having any role in health decision-making, managing one another’s affairs, and even having access to one another in the hospital.
Even with the passage of marriage equality, couples are choosing not to get married or getting married much later in life – so all the same concerns and potential issues exist.
For those who are married – marriage is not a replacement for estate planning. Being married does not by default, appoint your spouse as your Durable Power of Attorney to be able to make legal and financial decisions on your behalf nor do you waive your HIPAA rights by virtue of being married. As such, married couples still need to appoint their spouse as their Health Care Power of Attorney.
Lastly, and most importantly, we are only deemed married in 29 countries around the world. So, if you slip and fall on the Great Wall of China or get bit by a lion during a Safari in Tanzania, you are not considered married and would need to present a Hospital Visitation Authorization Form just to be allowed in the hospital room, let alone be able to make health care decisions.
Here are the top 3 reasons why estate planning is necessary, now more than ever, for the LGBTQ community.
1. The appointment of Justice Amy Coney Barrett
Duh. As utterly disappointing and, even maddening, as the appointment of Justice Coney Barrett is, we must brace ourselves for the fact that she was appointed to the Supreme Court for her lifetime and the decisions she will make will impact many generations of Americans to come.
Barrett is a strong believer that marriage is a commitment made between a man and a woman. In addition, she also believes that marriage equality “wasn’t for the courts to decide…it was a change that should occur in the state legislatures.” If given the opportunity, Barrett would most likely join her conservative counterparts in voting to appeal the decision made in the 2015 court case, Obergefell v. Hodge, legalizing same-sex marriage nationwide.
Estate planning is the fundamental legal way that we create connections and protections for loved ones and prior to marriage equality was the only way that we had to go about legally recreating a marriage. It is imperative that with her confirmation, members of the LGBTQ+ create a thorough estate plan allowing for things such as legal rights to health care decisions, division of assets, guardianship of any surviving minor children, and more.
2. Proper Will vs. Instate Succession
Intestate Succession means that your estate will pass through the laws of intestacy – meaning your blood, lineal descendants. This often differs dramatically from the wishes of people in the LGBTQIA community.
Quite often in our community, we create a family that is as close to us as blood relatives (or even closer) and the intestate laws do not acknowledge our chosen family. Moreover, the LGBTQ+ community tends to be more philanthropic and gravitate towards legacy giving but without a Will, there is no way to designate a charity of choice.
There are several reasons creating an estate plan is far more ideal, especially as a member of the LGBTQIA+ community.
- Rights to inherit assets from one another.
- Legal rights to make healthcare decisions.
- Creating a living trust to allow your spouse or partner to manage your affairs.
- Distribution of assets to whom you want, as well as when and how.
- Privacy to you and your spouse by avoiding probate and open court records.
- Guardianship of surviving children.
- Creation of a Children’s Trust and designating Trustees of said money
For all the above reasons, it is wise to work with a skilled professional to make sure that you and your family are taken care of properly.
3. Estate Planning During the Pandemic
COVID-19 has impacted us all in ways that we never imagined. At the outset of COVID, people (more than 1) came to my office with screenshots their loved ones took while in the hospital, outlining their wishes.
This new era we are in has shown us the importance of having an estate plan set in place.
Estate planning is one of the most important things you do for your family. Helping them make a crucial decision once you are no longer there to help. The only way to do that though is to put in writing what it is that you want to have happened.
Preparing your estate is a real act of love—not for you, but for your (chosen) family. It is an initiative-taking way of removing any and all burdens on them and telling them exactly what you want so a) they don’t have to worry about it and b) you get to take care of them and make sure they’re protected.
Life is not a dress rehearsal – this life is the one that you have. You can leave a legacy with a properly constructed estate plan and pass your assets on to loved ones, friends, family, and charities.
When creating an estate planning strategy, it’s important to have an experienced Estate Planning Attorney in your corner that understands your state’s laws and can help create an estate plan to effectuate your wishes.
Plan Ahead Today
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