June is a time of celebration and reflection for the LGBTQ+ community as Pride Month shines a spotlight on the progress made in the fight for equal rights. While significant strides have been made, such as the legalization of same-gender marriage and increased recognition of LGBTQ+ families, there is still a large gap in estate planning for LGBTQ+ individuals that could leave your loved ones with a big mess.
Estate planning laws are still written for hetero, cisgender individuals, and many lawyers aren’t well equipped to customize their estate plans to account for the unique family dynamics and wishes of LGBTQ+ clients. Sadly, if you have LGBTQ+ family members or are in a non-traditional family dynamic of any kind and don’t have a custom estate plan, the people you love most could find themselves accidentally disinherited from your estate or stuck in a lengthy and expensive court battle.
To make sure your family is well-cared for no matter how the law defines you, keep reading to learn why customized estate planning is so crucial for LGBTQ+ and all non-traditional humans.
The concept of family has expanded far beyond the confines of the traditional "nuclear family." Gratefully, we now celebrate the beautiful diversity of family structures, encompassing same-gender couples, unmarried partners, civil unions, polyamorous relationships, and an array of other unique family dynamics. However, when it comes to death or incapacity, the law still lags behind, often failing to accommodate non-traditional family units in ways that you would choose.
If you die without an estate plan in place, the law will apply the state’s default estate plan to your unique situation. Under the law’s default plan, your possessions and money will pass to your next closest relatives by blood or marriage. If you aren’t legally married to your partner or partners, the people you love will be automatically disinherited in the event of your death.
Likewise, if you have children that are unrelated to you genetically who you haven’t formally adopted, like a partner’s child or stepchild, those children will not receive anything from your estate after you die. Even if you’re married to the child’s parent, the law does not recognize a stepchild as a direct descendant and therefore doesn’t include them in its default plan.
To make sure the people you love -- your chosen family - are taken care of, no matter how the law labels your family, it's important to create a custom estate plan that ensures your assets are distributed according to your wishes and that your partners, children, and chosen family members are protected and cared for if something happens to you, even if may not be recognized under default inheritance laws.
If you ever wondered who would take care of you and your things if you become ill or incapacitated, your first thought is probably your partner. Right? After all, it seems like common sense that your partner of ten years (or 2 years, or 5 years, or 20!) should be the one to make healthcare decisions for you or pay your bills.
But unfortunately, the law doesn’t operate based on what might seem like common sense when we look at our everyday lives and relationships. The law doesn’t assume that you’d want any particular person making decisions for you if you become incapacitated. Instead, your family members will need to go through a stressful court guardianship procedure to be granted decision-making power by a judge.
If your family members can’t come to an agreement on who should be your decision-maker, the court may assign a professional guardian - a complete stranger - to make decisions for you instead!
To avoid court involvement altogether, it’s vital to name your chosen decision-makers - your Powers of Attorney - long in advance of ever needing them. This is especially important if you want to choose a decision-maker who isn’t related to you by blood or if you want to make sure that any certain lifestyle choices or beliefs such as a special diet, style of dress, or hormone therapy are still carried out if you’re incapacitated.
If you don’t put these wishes on paper and name someone you trust to uphold them, it’s likely a judge won’t appoint your chosen decision-maker. In this case, the person the judge chooses can make whatever decisions for you they feel is best, even if that means ignoring your chosen gender expression or identity.
No one expects to become incapacitated due to an illness or injury, but sadly, it happens. Legally naming a decision maker in advance and talking about your wishes with them and your extended family helps safeguard your rights and ensures that your wishes for how you are cared for are honored while avoiding family conflict as much as possible.
Protecting your family and your wishes as an LGBTQ+ individual requires the guidance and expertise of a lawyer who understands your unique circumstances and desires for your family. That’s where we come in.
While the law may still fall short in accommodating the diverse family structures and dynamics that exist today, we understand that every family is different, and we know how to craft a custom plan that not only protects your loved ones and ensures your wishes are honored, but also embodies the values, beliefs, and stories that make your family unique.