Estate Planning Considerations for LGBTQ Couples

A few issues same-sex and LGBTQ couples should consider when making an estate plan.

By , Attorney

Same-sex and LGBTQ couples used to have special concerns when creating an estate plan, by virtue of the fact that they couldn't legally marry in much of the country. However, in 2015, the historic Supreme Court decision in Obergefell v. Hodges made same-sex marriage legal in all 50 states, opening up the legal benefits of marriage to same-sex couples across the country. This sweeping change means that estate planning for married same-sex and LGBTQ couples now looks largely the same as estate planning for any other married couple. But if you're not married to your partner, estate planning may be especially urgent for you. Read more about why, and the steps you should consider. Additionally, learn about a few other issues that might remain for some married same-sex couples.

Make an Estate Plan If You're an Unmarried Couple

First things first. If you're an unmarried couple, regardless of whether you're an LGBTQ couple or not, creating a solid estate plan may have added urgency for you. An estate plan can ensure that your relationship is recognized after one of you dies, and that the surviving partner has access to as many of the benefits of surviving spouses as possible.

1. Make a Will or Living Trust

A will or living trust is the heart of any estate plan. A will in particular is a simple and relatively inexpensive document that you may be able to make yourself. With a will, you can:

  • determine who will inherit your assets
  • nominate a guardian for your children
  • arrange for an adult to manage any assets children inherit, and
  • name an executor.

If you die without a will or living trust, your state's laws of intestate succession will determine who inherits from you, and your partner of many years can end up with nothing.

You can make a simple will or living trust yourself with WillMaker & Trust. If you want a more complicated document, see a lawyer for help.

2. Take Steps to Avoid Probate

Probate is the court process of wrapping up your estate after you die. Probate can be a long and expensive process, and it's rarely a benefit to your heirs. Avoiding probate may be more complicated for unmarried couples because, in most states, they can't take advantage of laws that allow property to pass to spouses without probate.

You can avoid probate by using these estate planning tools:

Additionally, most states have simplified probate procedures for small estates. So if you don't have much property, you might not need to plan for probate at all. Learn more about Probate Shortcuts in Your State.

3. Make a Health Care Directive

Health care directives let you set out your wishes for end-of-life health care, in case you can't speak for yourself. There are two pieces to a health care directive:

  • the living will or declaration, in which you state what kind of care you want or don't want, and
  • the power of attorney (POA) for health care, in which you name a person to make health care decisions for you if necessary.

In some states, there two parts are actually two separate documents, while in other states, these two parts are combined into one.

When you make a health care directive (or power of attorney for health care), you can designate your partner as the person you want making health decisions for you in the event you become incapacitated. This is especially useful if your family is unaware of, or has not fully accepted, your relationship, as it gives your partner the legal authority to make medical decisions on your behalf.

Learn more about Health Care Directives.

4. Make a Financial Power of Attorney (POA)

With a financial power of attorney, you give another person power over your finances. Again, if you anticipate incapacity, or just want to make sure that your partner has the legal authority to take care of your finances in case of emergency, consider making a durable power of attorney for finances.

Learn more about how Health Care Directives and Financial Powers of Attorney can work together to protect you and your partner.

5. Reduce Federal or State Estate Taxes

Most people don't have to worry about federal estate taxes. (If you die in 2022, only estates worth more than $12.06 million will owe federal estate taxes.) State estate taxes, on the other hand, affect more people. However, not all states impose a state estate tax. Find out whether your state has an estate tax.

With federal estate taxes, all assets left to a surviving spouse—including a validly married spouse of the same sex—are exempt from federal estate tax. But if you're not married, the surviving partner won't have this benefit. State estate tax rules vary. If you're worried about estate taxes, you can see a lawyer or tax professional to discuss ways to reduce them.

6. Final Arrangements

As part of your estate plan, you and your partner should also consider making final arrangements documents. In this document, you can specify your wishes, in as much detail as you choose, about:

  • burial or cremation
  • embalming
  • caskets and urns
  • headstones or burial markers
  • ceremonies, and
  • paying for final arrangements.

While this document is not legally binding, it can come as great relief to those who must take care of these details after you die. Knowing what you wanted can calm concerns and put to rest any questions about your final wishes. This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest, or if you anticipate friction when your partner tries to assert your wishes.

You can easily create a final arrangements document using WillMaker & Trust. In addition to helping you make a will, simple living trust, healthcare directive, and financial power of attorney, WillMaker walks you through all of the issues listed above to arrive at a final arrangements document with as much or as little detail as you like about your final wishes.

Read more about Estate Planning for Unmarried Partners.

Estate Planning for Married LGBTQ Couples

Even if you're a married LGBTQ couple, you might want to consider whether a few additional estate planning issues apply to you.

1. Check for Outdated Beneficiary Designations

While certainly everyone should keep the beneficiary designations on their bank, retirement, and IRA accounts and life insurance policies up-to-date, LGBTQ couples in particular should make a point of checking that their beneficiary designations are current. Why? Many people remove ex-partners as the beneficiaries of their accounts when they get divorced. Divorce, with its legal procedures for unraveling a relationship, acts as a natural point for people to reevaluate their estate plans and beneficiary designations. However, because same-sex couples were not universally able to get married before the Supreme Court decision in 2015, break-ups often did not involve an official divorce. Without this built-in reminder to unwind assets and check beneficiary designations, you might have left an ex-partner named as the beneficiary to a significant asset. So double check your accounts.

Read How to Change a POD Account Beneficiary and Naming a Beneficiary for Your Life Insurance.

2. If Family Conflict is a Factor, Consider a No-Contest Clause in Your Will or Trust

If you're estranged from your family or expect family conflict over the property you leave behind, consider adding a no-contest clause to your will or living trust. A no-contest clause states that if someone (say, a disgruntled relative) challenges the validity of your will or trust in court, and then loses, they won't inherit anything at all from you. These clauses give potential challengers pause, and may be of interest to some in the LGBTQ community, as well as anyone who anticipates family disputes after death. However, no-contest clauses aren't enforced in every state. If you're interested in adding a mechanism like this, consult a local estate planning attorney.

Read more about No-Contest Clauses in Wills and Trusts.

3. Account for Children in Your Estate Plan

Even if you're married, one spouse might not be the legal parent of one or more of your children. (See Gay and Lesbian Adoption and Parenting for more on this topic.) With respect to your estate plan, you'll want to consider not only whether your children will inherit from one or both spouses, but also what will happen to your minor children if either (or both) of you die. If your family situation is complicated, consider looking for a family law or estate planning attorney.

Read more about Leaving an Inheritance for Children.

Other Legal Issues for Same-Sex Couples

Learn more about legal issues affecting same-sex couples in the LGBTQ Law section of Nolo.com.

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