Even for people with straightforward finances, estate planning can be confusing. For LGBTQIA+ individuals and couples, it’s often more complicated, especially if you entered a domestic partnership or civil union before same-sex marriage became legal nationwide. In some states, those unions may still carry legal weight, while they don’t in others. It’s worth reviewing your documents to make sure your plan reflects your current relationships and rights under the law.
Protect your LGBTQIA+ partner and family
If you want your spouse or partner to make decisions on your behalf, you need to give them legal authority. A durable financial power of attorney allows someone to handle your money and property, which is especially helpful if you become incapacitated. A living will — also called an advance directive — spells out your wishes for end-of-life care. A medical power of attorney gives someone the legal ability to make health care decisions for you if you can’t speak for yourself.
For LGBTQIA+ couples, it’s especially important to complete a Health Insurance Portability and Accountability Act release form. This ensures that doctors and hospitals can legally share your medical information with your partner or spouse. Without it, they may be shut out of important decisions or updates during a health emergency.
Guardianship is another critical issue for LGBTQIA+ couples who share children. Without formal legal arrangements, courts may defer to a biological parent or other relative, resulting in a decision that doesn’t reflect your intentions. To avoid this, clearly name in your will the person you choose to be your children’s guardian.
Keep documents current
The documents named above, as well as other legal documents such as wills and trusts, must follow current laws and should reflect your current intent. You should review your documents every few years, and more often if the documents were created before the 2015 Supreme Court ruling on same-sex marriage, if family dynamics have changed, or if some family members do not support your relationship. Updating your estate plan gives you the chance to take advantage of new protections and tax benefits that may not have been available in the past.
Beneficiary forms are especially important. These are the documents tied to retirement accounts and insurance policies — such as 401(k)s, individual retirement accounts, and life insurance — that determine who receives those assets when you die. These designations override anything written in your will, so make sure they’re correct. If you forget to update a beneficiary after a breakup, for example, an ex could end up inheriting assets you intended for someone else.
Thanks to the unlimited marital exemption, same-sex spouses who are both U.S. citizens can now leave any amount of assets to each other without triggering federal estate taxes. You may also be able to use certain trusts to reduce estate or gift taxes, avoid probate, and provide additional legal protection. Unlike a will, which becomes public record, trusts, powers of attorney, and many other documents in your estate plan remain private.
Plan now
If you live in a state that doesn’t fully recognize same-sex relationships and die intestate — that is, without a valid estate plan — your partner may have no legal claim to property, bank accounts, children, or other assets, no matter how long you’ve lived your lives together. A well-prepared estate plan avoids this outcome and gives you peace of mind that your wishes will be respected.
The law continues to evolve, but your plan should reflect where things stand today. Give our office a call at 707-769-9975 or email us to meet with an attorney familiar with LGBTQIA+ issues in estate planning to create or update documents that safeguard your future and honor the life you’ve built.
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