Blog

  June 27, 2016

cadillac rangh-pride.pngLast week, hundreds of Pride events took place across our nation to celebrate and support the LGBT community. In reflection of Pride Week, let’s discuss the necessity of estate planning for LGBT individuals and couples. 
LGBT individuals and couples have an even greater need than others for estate planning.  Those individuals who are lesbian, gay, bisexual or transgender, whether married, unmarried, in a civil union, or single, need to take the time to do estate planning to protect themselves in a legal system that does still may not provide them the same benefits as others.  

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The U. S. Supreme Court has held that same-sex marriages legal in one state are to be recognized as legal in all 50 states.  This means that many legal protections in the estate planning area are now available for same-sex couples that previously were not.  The automatic right to inherit certain property from your spouse, the right to make medical or financial decisions for each other, and related legal considerations should now apply to LGBT couples who have formally married or entered into a legally-recognized civil union under any state’s law.  However, it is still a good idea to have the basics of a good estate plan in place, whether you have married or not, so nothing is left to chance.  This is the same advice we give to heterosexual couples.

Many LGBT couples still have not decided to enter into formal marriage and do not have the legal protections it provides.  For them, estate planning is critical to providing for their partners.  Unmarried LGBT individuals, whether in a relationship or not, may not have their wishes for financial or medical management of their affairs while alive, or their wishes for handling matters on their death, honored, without a few key estate planning documents in place.

These are the key estate-planning basics for LGBT individuals or couples, whether legally married or not, we recommend:
  1. A Last Will and Testament, or “Will”.  This spells out how you want your estate to pass on your death.  If you are unmarried and want your estate to pass to your same-sex partner, this is essential.  State inheritance laws will not allow this to happen.  You can name whom you would want to serve as executor of your estate to implement your estate plan when you die.  You can set up trusts for minor beneficiaries or beneficiaries who need special conditions set on the receipt of their inheritance and name whom will be the trustee to administer those assets for the benefit of the beneficiaries.  You also should specify whom you would want to serve as guardian of your minor children (although depending on the circumstances, this may not be honored if another person has a superior right to guardianship under state law).  
  2. A Statutory Durable Power of Attorney.  This is the legal document that gives someone you choose the power to act in your place if you are not able to act to manage your own business or financial affairs.  You want to make sure this remains effective if you become incapacitated or incompetent.  
  3. A Medical Power of Attorney/Directive to Physicians (or Living Will)/ HIPAA Release.  The medical power of attorney spells out who can make medical decisions on your behalf if you are not able to do so yourself.  The directive to physicians or living will expresses your wishes for whether you want to be kept alive by artificial means if you are unconscious and in terminal condition and have no reasonable chance of recovery.  The HIPAA release allows the person you designate to have access to your protected health information so the person making these medical decisions can have full medical information.
  4. A Power of Attorney to Dispose of Remains.  This allows you to appoint someone to carry out your wishes for burial, cremation, donation of your body parts, donation of your body to a medical facility, or the like.
  5. Review of all possible beneficiary designations.  You can have many assets pass directly to your partner or other intended beneficiary by their designation as beneficiary or by payable or transfer on death provisions.  This is especially important on IRAs, 401(k) accounts, life insurance policies, and bank or investment accounts, which often comprise a large part of a person’s estate.

We would be happy to help you take this important step in protecting your assets and achieving your wishes for the management of your affairs both in life and in death.  Don’t leave these important decisions to someone else to make for you.  Whether you are in a same-sex relationship or are an LGBT individual, contact Adair M. Buckner, Amarillo estate planning attorney, today to ensure your property is protected and your wishes are upheld.
 
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*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

Article Topics:
Estate Planning Same-Sex Rights Wills & Trusts