Estate Planning for the Gay and Lesbian Community

Estate planning is not just for the wealthy.  It is critically important to the LGBT community.

If a member of the GLBT community fails to plan properly, the result can be devastating in times of illness or accident.  All of us can become incapacitated without warning at any age.  If you have no living trust or powers of attorney, blood relatives assume can take control of your life if you become incapacitated.  For some, and perhaps you, that might mean a partner and/or friends could be shut out of your life when you need them most of all to be there for you. 

Furthermore, if you think you have an estate plan because you have a will, or hold property in joint tenancy with a partner, you do not.  You may have provided for distribution of your assets when you die, but living without the right estate planning documents can be tantamount to giving up control of your whole life in times of incapacity, to your blood relatives, or to the courts.

Domestic Partnerships—an Estate Planning Perspective

While you cannot (any more) get married in California, the State does register domestic partnerships for same-sex couples. The rights and responsibilities of registration are the same as those affecting married couples but with one major difference:  None of the many spousal benefits of marriage afforded by the federal government to heterosexual couples are available to gay partners.  But the State benefits can be substantial, and for many those are paramount.  Remember, however, that you will still need effective estate planning documents, especially if you go out of state where your domestic partnership is not recognized.

Beware: registering a domestic partnership affects your property rights in California.  If you want to keep your property separate, or make other arrangements, you may want to enter into a pre-partnership agreement (commonly known as a “prenup”) with your prospective partner to reflect your wishes. Before registering your California domestic partnership, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the gay community. That attorney can counsel you on the implications of registration and advisability of registering in your unique situation.

The Problems Estate Planning Solves for the GLBT Community

You can avoid numerous problems through proper estate planning:

• Using a Living Trust, you can appoint someone you trust to manage your personal and business affairs if you become incapacitated through illness or accident
• A Health Care Power of Attorney (known in California as an “Advance Health Care Directive”) can avoid many potential problems if you are unable to make your own health care decisions.  You can appoint whoever you want to make such decisions for you, and make sure your partner and/or friends are not shut out if you are hospitalized.
• You can ensure your money and possessions are distributed as you want, and not as dictated by the State of California
• Proper estate planning virtually assures you that your minor children will be raised by the person you designate, and not as ordered by the State, which might appoint a stranger as guardian
• Proper estate planning will ensure correct strategies are used to avoid unnecessary taxation whenever  possible, as well as  very expensive, protracted and public probate
• A Living Trust guarantees privacy when you are incapacitated or die.  For some, it can be important to keep a relationship confidential.