Article: Estate Planning Considerations for LGBTQIA+ Individuals

Writing estate planning documents allows you to make your wishes clear and ensure your chosen family members, friends, or professionals can carry out those wishes.

August 30, 2023

By: Ryan A. Brown, Esq.

Estate planning is important for everyone, but it is especially important for LGBTQIA+ individuals. LGBTQIA+ individuals may face unique challenges when it comes to estate planning, such as:

  • Discrimination: Some states still have laws that discriminate against LGBTQIA+ people, which can make it difficult to create an estate plan that meets their needs.
  • Unsupportive family members: Family members may not be fully supportive of the sexual orientation, gender identity, or chosen spouse or partners of LGBTQIA+ individuals.
  • Lack of legal recognition: While 2015 the Obergefell v. Hodges decision in the United States Supreme Court created legal recognition for same-sex marriages across the United States, many states still have laws that do not recognize same-sex marriages, or gendered laws that refer to spouses only as "husband and wife." These outdated laws can make it difficult to protect the assets of LGBTQIA+ couples in the event of the incapacity or death of one spouse or partner. The laws governing LGBTQIA+ rights are constantly evolving, and it is important to plan for the possibility that the laws in your state may change in the future.
  • Statutory presumptions: Default rules under state laws for estates and incapacity often do not adequately reflect the situation of LGBTQIA+ individuals.

Despite these challenges, there are a number of things that LGBTQIA+ individuals can do to create an estate plan that meets their needs. Writing estate planning documents allows you to make your wishes clear and ensure your chosen family members, friends, or professionals can carry out those wishes.

  • Choose your agents carefully: When you are naming agents, executors, trustees and guardians in your estate planning documents, it is important to choose people who will respect your wishes and who will be able to manage your assets responsibly. If you have family members who are not supportive of your sexual orientation or gender identity, you may want to consider naming other people as your spouse, partner, beneficiaries, friends, colleagues, members of your LGBTQIA+ community, or a trusted professional.
  • Consider using a trust: A Revocable Trust can be a helpful estate planning tool for LGBTQIA+ individuals. Unlike transferring assets with a Last Will and Testament through the public court probate process, Trusts can privately pass assets to your chosen beneficiaries even if state law would not recognize those beneficiaries as your heirs at law. Some Trusts provide creditor protection benefits, either for you, during your lifetime, or for your beneficiaries, after your death.
  • Plan for children: Depending upon the legal relationship between you, your spouse or partner(s) and your children, additional legal documents may be needed to manage assets or provide for guardianship of young children.
  • Update regularly: Your estate plan should be reviewed and updated regularly. Your circumstances will change, as will the circumstances of your chosen agents, executors, trustees, guardians and beneficiaries. Creating a consistent pattern of updated estate planning documents will make it harder for your wishes to be challenged after your death, and will increase the likelihood that your assets are distributed to your chosen beneficiaries.

It is important to get professional help when creating an estate plan. The attorneys at Arlington Law Group are experienced in estate planning for LGBTQIA+ individuals and can help you to create a plan that meets your specific needs. We welcome all individuals and provide a safe environment, where you will be respected, to help you plan for your needs and the needs of your loved ones.

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