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  • Writer's pictureMichael Romano

Estate Planning Considerations for LGBTQIA+ Individuals

The LGBTQIA+ community intimately understands the persistent battle for freedom and equality. From the Stonewall riots to the fight for same-sex marriage, advocating for ourselves and fellow community members has been crucial to our success. Since Obergefell v. Hodges, the landmark United States Supreme Court decision that established marriage equality in 2015 throughout the country, our community has made considerable progress.

 

Nevertheless, we still face a society with varied levels of acceptance. For this reason, members of the LGBTQIA+ community often have additional considerations when it comes to estate planning. Utilizing a few essential estate planning documents (Link to “Estate Planning 101”) can bring peace of mind, ensure that your goals are accomplished, and help minimize the emotional and financial toll on those left behind. For our community in particular, estate planning has become a vital resource in protecting our loved ones and our legacies.

 

Family Structure

 

Having an atypical family structure is fairly common for someone who identifies as LGBTQIA+. This could include anything from having estranged family members, unmarried long-term partners, or no children or direct descendants. These circumstances can pose some challenges in the event of an emergency and when it comes time to administer your estate, or distribute your assets following your passing. Let’s consider the following example:

 

Jessica identifies as a lesbian and has been living in her New York City apartment with her long-term partner, Shelly, for the last 23 years. Jessica’s mother and one sister are alive, however, they have not spoken to Jessica in over 17 years due to their disapproval of her sexuality. Jessica does not have any estate planning documents, such as a will, health care proxy, or power of attorney, in place when she is involved in a car accident leaving her in a coma.

 

Even though Jessica had trusted Shelly and intended for her to be in charge of her affairs, Shelly would have few legal rights, if any, to care for Jessica. In the eyes of the law, Shelly is effectively a stranger in the above scenario, without any legal right to act on Jessica’s behalf. Shelly cannot make health care decisions for her, she cannot pay bills for her, and Shelly will not be entitled to any of Jessica’s assets in the event of her passing. Those rights under New York law rest by default with one’s closest blood relatives, such as spouses, children, parents, or siblings.

 

While this is an extreme example, Jessica’s situation outlines the importance of planning ahead to ensure that the ones you actually love and trust are in charge of your affairs and can carry out your wishes. Estate planning would have helped Jessica and her partner avoid this situation becoming even more tragic and challenging by putting Shelley in a position of legal authority..

 

Privacy

 

A will (Link to “Estate Planning 101”) is one of the most well-known legal documents. A valid will dictates who receives your assets following your death. “Probate” is the process of asking the Court to confirm your will’s validity and giving your executor legal authority to carry out your wishes. In New York, a will is submitted for probate to the Surrogate’s Court, and the rules of that court require that legal notice be given to the deceased person’s closest family members, such as spouses, children, parents, siblings, etc. Such family members technically have legal standing to challenge a will, since they are the ones who would inherit the deceased person’s property if there was no will.

 

Referring back to the story of Jessica and Shelley above, let’s imagine an unfortunate scenario in which Jessica passes away from her injuries. Let’s also assume that Jessica had the foresight to make a will leaving everything to Shelley, and naming Shelley as the executor. Even though Jessica put this will in place, probating the will requires Shelley to give Jessica’s family notice, and this can provide an opportunity for Jessica’s mother or sister to contest the validity of the Will. If a contest occurs (even if it is frivolous), it can lead to increased costs (in the form of legal fees) and delays for Shelley, who just lost the love of her life.

 

Utilizing a trust agreement (Link to “Estate Planning 101”) can help avoid the above scenario. Trusts can serve various purposes, but what makes them invaluable to the LGBTQIA+ community is that they can help us avoid probate, and in turn, giving potentially hostile or distant family members the opportunity to object to someone’s estate plan. This can save same-sex unmarried couples both time and money, while keeping their affairs private, since trusts, unlike wills, are not required to be filed with court.

 

Empowerment

 

            A common misconception about estate planning is that you’ll be facing your own death, and giving up control of your affairs. In fact, the opposite is true. Preparing for your future allows you to express your intentions precisely and directly. By using these legal tools, you can ensure that your values are carried out. You remain in control of your estate and dictate what follows your passing. You designate trusted individuals who will look after your best interests. Because default inheritance laws do not always work in our favor, you can dictate exactly what you’d like to happen, ensuring that your wishes are honored and that your legacy is preserved.

 

Understandably, many will perceive the estate planning process as both grim and morbid. However, it is important to understand that with proper planning, you are protecting the well-being of your loved ones that remain after you’re gone. We always suggest that people try to reframe their perception of estate planning as an empowering process, which puts one in control and protects those they love most.

 

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