Living Trust
Estate Planning for LGBTQ+ Individuals and Same-Sex Couples
Advocating for equal rights, responsibilities and access to services for members of the lesbian, gay, bisexual, transgender community have been ongoing for many decades. During this time, there have been significant victories won that protect the rights of LGBTQ+ individuals. However, there is still work to be done.
Historically, estate planning has been the key to ensuring LGBTQ+ individuals and couples create legally valid strategies that equalize their rights under the law. Over the last two decades, we helped many lesbian and gay clients in San Diego, California voice their desires and protect their rights to make decisions for themselves, to choose who inherits their assets, and prevent any claims from those who have been unsupportive in the clients’ lives.
However, LGBTQ+ estate planning strategies changed significantly in 2013 when the U.S. Supreme Court ruled that legally married same-sex couples had the same rights and responsibilities as opposite-sex couples. This changed the landscape of estate planning for LGBTQ+ couples, now that they were entitled to the same income tax, estate tax and gift tax advantages.
Any LGBTQ couple who did estate planning prior to 2013 should REVIEW their estate plan with an attorney who is familiar with these developments. They can ensure that your plan is up-to-date and is maximizing your rights while reducing your exposures to taxes and other fees. At Legacy APC we can ensure your estate plan is taking advantage of the same planning strategies that have historically been used for opposite-sex couples.
Of course, nothing is ever guaranteed in life and the political battlefield can take some surprising twists and turns. As we’ve seen recently, the Supreme Court can also reverse previous rulings, overturning rights and responsibilities we now take as a given. Therefore, we strongly recommend that LGBTQ+ individuals and couples express their wishes in an estate plan to ensure your rights are protected no matter what the future holds.
Estate Planning Considerations
Married LGBTQ+ couples can sometimes make the mistake of assuming that marriage fixes the estate planning and inheritance issues previously faced due to inequalities in the law. For example, long-term couples who acquired assets before marriage was legal, often mistakenly believe that their spouse will inherit their property now that they are married; or their spouse will automatically be able to make decisions on their behalf; or that they can skip Probate after the first to die.
Unfortunately, we live in a world where lack of acceptance exists and LGBTQ+ couples may find themselves facing prejudice, delays and challenges that opposite sex married couples wouldn’t encounter. Having legally binding authorizations and proof is critical to protecting your rights in times of emergencies.
Not all LGBTQ+ couples choose to marry and the planning strategies we use for these clients require employing additional techniques to fully protect their rights and assets.
Same-Sex Couples Without a Legal Marriage License
LGBTQ+ couples who are not legally married are not eligible for any of the rights and benefits reserved for married couples. This includes both couples cohabiting without legal recognition of their relationship and those in a registered domestic partnership. You will need to ensure your estate planning is completed so your partner can make financial and healthcare decisions on your behalf should you be unable to do so for yourself, and designate an inheritance for your partner (or they get $0!) and other beneficiaries.
Domestic Partnerships and Other Legal Alternatives for Unmarried Couples
Many couples have chosen to enter into a domestic partnership here in California. While others have entered into a Civil Union or other legal marriage alternative in other states and jurisdictions, and then moved to California. The rights and responsibilities of these legally recognized partnerships vary from state to state. If you own property in another state and live in California, then you have to take these differences into consideration when planning for the future as well. The estate planning strategies for Unmarried Couples can be more complex so it's important to have guidance navigating the intricacies of such a plan.
Single LGBTQ+ Individuals
Planning for LGBTQ+ individuals who are single is just as critical. Without an estate plan, the state of California gets to decide who makes healthcare and financial decisions for you if you are incapacitated and who inherits your property and assets. This will likely be your closest blood relatives and legal heirs, regardless of the status of your relationship with them or whether they are supportive. If you have special charities, pets or other causes you want to support, it's important to get those all documented in a valid estate plan.
Benefits of LGBTQ+ Estate Planning
All members of the LGBTQ+ Community, regardless of marriage status, can benefit from creating a holistic estate plan that protects their rights, and ensures the loved ones they choose can make decisions on their behalf and inherit property. Here are some of the planning considerations we’ll discuss at your personal consultation with the attorneys at Legacy APC.
Incapacity Planning:
To ensure the person you choose can make health care and financial decisions on your behalf. This ensures that someone you trust and that has your best interest in mind can step in for you.
Child Guardianship:
Choose a guardian to care for your minor children in the event of your death. If you share a child with your spouse or partner who has not legally adopted them, they have no legal rights to raise your child if something happens to you.
Inheritance Planning:
Decide who, when and how your assets are distributed to your chosen beneficiaries. This may include Pet Planning and/or Charitable Giving.
Probate Avoidance:
Ensure your loved ones don't have to endure the process of death Probate. An expensive, public and time-consuming court process to pay off your debts and distribute assets to beneficiaries.
Funeral and Burial Planning:
If you have strong preferences about how your body should be handled, disposed of, and the type of service you want, this can all be stated in your estate plan. You can also set aside cash to pay for your funeral.
Estate Tax Planning:
Some clients have assets in excess of the federal estate tax exemption, and need to start considering tax planning. A plan to minimize income taxes, estate taxes, inheritance taxes, capital gains taxes and generation-skipping taxes is all part of your holistic estate plan.
How the LGBTQ+ Estate Planning Attorneys at Legacy APC Can Help You Protect Your Rights & Assets
At Legacy APC we are committed that local San Diego LGBTQ+ individuals, couples and families have access to supportive, protective and compassionate estate and legacy planning guidance. We have been a long-term ally of the San Diego LGBTQ+ community, and often partner with other professionals and community groups. We provide workshops that educate and empower LGBTQ+ individuals to protect their rights, assets and futures.
To schedule your free consultation, please contact our office.