Whether you are married or in a committed relationship, Wills and Trusts planning is about much more than planning for death—it’s about planning for your life. It’s the way to ensure your loved one will be protected and provided for in the event of your death or incapacity. If you are a member of the LGBTQ+ community, Wills and Trusts planning is even more critical.
Although same-gender marriage is now legally recognized in all 50 states, long-held prejudice at both the political and family level continues to create complications for both married and unmarried couples of the same gender. For example, suppose you have family members who are opposed to your marriage or relationship. In that case, your Will and Trust could be disputed or even sabotaged by unsupportive relatives. This could mean that family members are more likely to contest your wishes. It might even result in a custody battle over non-biological children in the event of the biological parent’s death.
Unsupportive family members may even try to block the ability of your partner to make medical decisions on your behalf should you become incapacitated due to an accident or illness. Even worse, your family members could try to kick your partner out of a shared home or they may even block your partner from seeing you if you require hospitalization.
Additionally, if you and your partner are unmarried, your partner would have no rights or protections should you become incapacitated or die without any planning in place.
Given these issues, if you are in a committed same-gender partnership or marriage, you should be aware of several unique considerations regarding your Will and Trust. While you should meet with us, your Personal Family Lawyer®, to address your specific circumstances and how that could affect your individual Wills and Trusts planning needs, here are three of the most pressing concerns to keep in mind.
- A Will Alone Might Not Be Enough
Suppose that you’re unmarried and die without an Will and Trust. In that case, your property will be shared with your surviving family members in accordance with your state’s laws through intestate succession. The state’s laws would not protect your unmarried partner or all them to inherit from your estate in any manner, so if you want your partner to receive any of your assets upon your death, you need to—at the very least—create a will.
However, having an Will and Trust that consists solely of a will often doesn’t provide sufficient protection for your spouse/partner. Therefore, we often recommend that same-gender couples create both a will and a trust. Although a will is a foundational part of nearly every Will and Trust having just a will could leave your partner/spouse at risk.
Most importantly, a will does not work in the event of your incapacity, which could happen at any time prior to your death. Should you become incapacitated with only a will in place, your partner/spouse may not have access to needed funds to pay bills, or they might even be kicked out of your home by a family member appointed as your guardian.
Furthermore, a will is required to go through the often long, costly, and potentially conflict-ridden court process known as probate. In contrast, assets that are properly titled in the name of your trust would pass directly to your partner/spouse upon your death without the need for probate.
If your relationship is not supported by one or both families, avoiding the probate process is especially important. If a family member doesn’t support your relationship, they are more likely to contest your will during the probate process.
If your will is successfully contested, this could prevent your surviving partner/spouse from receiving assets you specifically left them in your will. Additionally, this process of contesting your will is extremely time-consuming, costly, and emotionally draining for your surviving partner/spouse.
Typically, when an attorney drafts your will, it is not set up in a manner that protects your assets after they are passed to your partner/spouse from creditors, future relationships, or lawsuits. However, leaving your assets in a trust that your partner/spouse would ensure the assets are protected from creditors, future relationships, and/or unexpected lawsuits.
- Incapacity Planning is Especially Vital
As we touched on earlier, Wills and Trusts planning is not just about planning for your death; it’s also about planning for your potential incapacity. Proactive Wills and Trusts planning allows you to name the person (or persons) you would want to make your healthcare, legal, and financial decisions for you if you are incapacitated and unable to make such decisions yourself through a medical power of attorney and durable financial power of attorney.
If you haven’t planned for your incapacity, the choice is then left to the court to appoint the person(s) to make these decisions on your behalf. If you’re unmarried and the court appoints one of your relatives as your guardian, they could leave your partner totally out of the medical decision-making process and even deny them the right to visit you in the hospital. Even if you are married, it’s not guaranteed that your spouse would be appointed to have the ultimate legal authority to make such decisions.
Although the court typically gives spouses priority as court-appointed guardians, this isn’t always the case, especially if unsupportive family members challenge the issue in court. To ensure your partner/spouse can make these decisions for you, you must grant them the authority to do so in a properly executed medical power of attorney and durable financial power of attorney.
A properly executed durable financial power of attorney gives your spouse the authority to manage your financial, legal, and business affairs, including paying your bills and taxes, running your business, selling your home, as well as managing your banking and investment accounts.
In addition to creating a will and trust, be sure to also create a living will that will tell your spouse exactly how you want your medical care managed in the event of your incapacity, particularly at the end of life. Finally, don’t forget to provide your partner/spouse with HIPAA authorization so they will have access to your medical records to make educated decisions about your care.
As your Personal Family Lawyer®, we can support you in putting in place a robust Will and Trust that will ensure that your partner/spouse has the maximum rights possible if you are ever incpacitated.
Next week, in part two, we’ll discuss the final Wills and Trusts planning consideration for LGBTQ couples—securing parental rights for the non-biological parent of minor children.
This article is a service of Levi L. Alexander, Personal Family Lawyer®. We do not just draft documents. We help to ensure you make informed and empowered decisions about life and death, for yourself and the people you love. This is why we offer a Family Wealth Planning Session™. During this session, you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session for free.