Estate Planning for Gay Couples

Most people, gay or not, should consider making an estate plan. However, gay couples have more to gain from making an estate plan than married straight couples, because 1) gay couples cannot rely on the many laws designed to protect married people and their property, 2) an estate plan can help clarify the nature their relationship for those family members or professionals who may not understand it or approve of it.

An Estate Plan Addresses Important Legal Issues

The institution of civil marriage affects how couples are treated under state and federal law. These benefits affect how couples own property together, who gets what property when a member of a couple dies, how taxes are calculated and paid, and who has the right to make health care decisions when one member of the couple is incapacitated.

Because same-sex couples cannot marry in most states --and because federal law does not currently recognize same-sex marriages where in states that have legalized them – gay couples cannot rely on the laws that married couples rely on to distribute their estates when they die, plan for taxes, and ensure that they will be able to visit their loved one in the hospital.

So instead of relying on the law, same-sex couples can use their estate plan to create individualized agreements that make their wishes legal.

Learn more about how Federal Marriage Benefits are Denied to Same-Sex Couples.

To learn which specific estate planning tools same-sex couples should consider, read 6 Key Estate Planning Issues for Gay Couples.

An Estate Plan Also Addresses Non-Legal Issues

Unlike other (straight) unmarried couples, gay couples cannot rely on our society’s norms to validate their most important relationships. While a non-married straight couple might be recognized as a couple by friends, family, social workers, or hospital employees, a gay couple might have to do more convincing. 

An estate plan can indicate to everyone involved that your partner is your partner and that he or she should be treated as such -- particularly when it comes to knowing about your wishes. This aspect may be important for those couples whose families do not now about or do not support their same-sex partnership. It is also important for decisions that don’t require legal backing.

For example, a Final Arrangements document is not a legally binding estate planning tool, but it sets your final wishes out in writing so that your partner will have a written account of your wishes. When dealing with other family members, a final arrangements document will be much more authoritative than your partner simply saying “he said he wanted to be cremated.”

How to Make an Estate Plan

To make an estate plan, there are some things you can do on your own, but it’s also a good idea to see an estate planning attorney who specializes in same-sex legal issues in your state.  

Things You Can Do Yourself

If you have a simple estate and simple wishes, you may be able to make a will, trust, health care directive, financial power of attorney, and final arrangement document without the help of a lawyer. All of these documents are available through Quicken WillMaker Plus.

Learn more about these documents and why you’ll want them in Six Key Estate Planning Issues for Gay Couples.

When to See a Lawyer

Because laws affecting same-sex couples can be complicated – especially when it comes to how property rights change from state to state and how the federal government sees your relationship -- see an estate planning attorney or tax professional for questions about state and federal taxes or moving to a different state. It’s also a good idea to run your estate plan by an experienced attorney – just to make sure you’ve got your bases covered.

To find an attorney in your area, you can start with Nolo’s Lawyer Directory.  But also ask your friends – sometimes a friend’s reference can be the best way to find a good lawyer.

Learn more about Finding and Working with a Lawyer.

Make an Estate Plan Even If You Are Registered or Legally Married

Do not rely on the law to do your estate planning for you.  Even if you are legally married, in a domestic partnership, or in a civil union, make a plan so that your wishes are documented no matter where you live or who is assessing the legality of your partnership.

Learn more about legal issues affecting gay couples on the LGBT Law section of Nolo.com.