LGBT couples often face challenges during estate planning and find trouble navigating through the U.S.’s complex legal system. Estate planning is the process of writing a will or a prenuptial agreement, to decide how assets and property will be divided.
There is a common misconception that estate planning is reserved for people with extensive wealth. That is not true. In reality, estate planning is something most of us can benefit from. Unfortunately, estate planning is not always easy. This is especially true for members of the LGBT community.
Married v. Unmarried Status For LGBT Couples
Many states now recognize same-sex couples and provide the same estate planning options afforded to opposite-sex couples. However, couples who are not recognized as legally married are still limited in terms of property transfers, taxes and gifts.
During estate planning, it is important to consider whether your marriage is legally recognized in relevant states. If you or your spouse becomes ill or dies in a state that does not recognize same-sex marriage, then you may face challenges in making decisions and handling their assets. For legal counseling regarding your state’s estate planning laws, contact an estate planning attorney.
What information should I have for estate planning?
When starting to create a plan for your estate, there should be a few steps you should take first.Creating a will that outlines where assets will go, who will receive what, and numerous other assets that could be divided. Without a will, California law would take over the assets after death. A living trust is also necessary when estate planning. A living trust works the same way as a will does, but a living trust would take effect once signed, not after death. A person could discuss what or who would be in charge of a company once that person becomes incapacitated. Unlike wills, however, a living trust may be revoked at any time. Revocable trusts could be more useful than irrevocable trusts to some. For example, if a person loses a large portion of their income, or wants to change their trust, they would be able to do so. Irrevocable trusts are more meant for wealthier people. This is meant to protect certain properties from divorce, want to keep certain properties to themselves, or to ensure an asset goes to a specific person.
Having an estate planning checklist of all of your personal and valuable items, as well as their respective prices is a must. This could include anything from wallets, watches, homes, to stock or bonds. It’s important to list all of these items out to ensure that nothing will be lost or split that you don’t want. This can ensure that nothing will be lost or given to the wrong person.
Even if you and your partner have discussed your wishes, if you do not have a healthcare directive naming him or her as your power of attorney, then they cannot legally make decisions on your behalf. This can be traumatic for same-sex couples whose marriage is not recognized, or whose partnership is questioned. Having a healthcare directive and power of attorney allows your spouse or partner to make decisions on your behalf.
To ensure your healthcare directives are in order, contact an estate planning attorney. LGBT couples often find themselves financially impaired after a loved one’s death due to confusion regarding their healthcare directives. It is between you and your loved one to decide who has a healthcare directive and power of attorney.
The status of a “spouse” does not on its own give your spouse the legal ability to make financial decisions on your behalf. LGBT couples can overcome this challenge by establishing a financial power of attorney. This allows your spouse the ability to make decisions.
With same-sex marriages legally recognized in all 50 states, many people wonder why there are still challenges for same-sex couples. Unfortunately, while the government can create a law, there are cities, businesses, and people who still refuse to recognize these couples. The result is unnecessary challenges for couples who simply want equality and do the right thing for their family.
If you or a loved one is seeking to plan his or her estate, contact us at Pride Legal to get in touch with one of our LGBT estate planning attorneys. To protect your rights, hire someone who understands them.