June marks a time of celebration and introspection within the LGBTQ+ community, as Pride Month highlights the advancements made in the pursuit of equality. While notable progress has been achieved, such as the legalization of same-sex marriage and increased acknowledgment of LGBTQ+ families, a significant gap remains in estate planning for LGBTQ+ individuals, potentially leaving loved ones in a precarious situation.
Existing estate planning laws predominantly cater to heterosexual, cisgender individuals, and many legal professionals lack the expertise to tailor estate plans to accommodate the distinctive family dynamics and preferences of LGBTQ+ clients. Regrettably, without a customized estate plan, LGBTQ+ individuals and those in non-traditional family structures may inadvertently exclude their loved ones from inheritance or become entangled in protracted and costly legal disputes.
To ensure the well-being of your family, regardless of how the legal system categorizes your identity, it’s imperative to understand the importance of personalized estate planning for LGBTQ+ and all non-traditional individuals. Read on to discover why tailored estate planning is essential for safeguarding the interests of your loved ones.
1. Care for Your Family as You Define It
The concept of family has expanded far beyond the confines of the traditional “nuclear family.” Gratefully, we now celebrate the beautiful diversity of family structures, encompassing same-gender couples, unmarried partners, civil unions, polyamorous relationships, and an array of other unique family dynamics. However, when it comes to death or incapacity, the law still lags behind, often failing to accommodate non-traditional family units in ways that you would choose.
If you die without an estate plan in place, the law will apply the state’s default estate plan to your unique situation. Under the law’s default plan, your possessions and money will pass to your next closest relatives by blood or marriage. If you aren’t legally married to your partner or partners, the people you love will be automatically disinherited in the event of your death.
Likewise, if you have children that are unrelated to you genetically who you haven’t formally adopted, like a partner’s child or stepchild, those children will not receive anything from your estate after you die. Even if you’re married to the child’s parent, the law does not recognize a stepchild as a direct descendant and therefore doesn’t include them in its default plan.
To make sure the people you love — your chosen family – are taken care of, no matter how the law labels your family, it’s important to create a custom estate plan that ensures your assets are distributed according to your wishes and that your partners, children, and chosen family members are protected and cared for if something happens to you, even if may not be recognized under default inheritance laws.
2. Protect Your Financial and Health Care Rights
If you ever wondered who would take care of you and your things if you become ill or incapacitated, your first thought is probably your partner. Right? After all, it seems like common sense that your partner of ten years (or 2 years, or 5 years, or 20!) should be the one to make healthcare decisions for you or pay your bills.
But unfortunately, the law doesn’t operate based on what might seem like common sense when we look at our everyday lives and relationships. The law doesn’t assume that you’d want any particular person making decisions for you if you become incapacitated. Instead, your family members will need to go through a stressful court guardianship procedure to be granted decision-making power by a judge.
If your family members can’t come to an agreement on who should be your decision-maker, the court may assign a professional guardian – a complete stranger – to make decisions for you instead!
To avoid court involvement altogether, it’s vital to name your chosen decision-makers – your Powers of Attorney – long in advance of ever needing them. This is especially important if you want to choose a decision-maker who isn’t related to you by blood or if you want to make sure that any certain lifestyle choices or beliefs such as a special diet, style of dress, or hormone therapy are still carried out if you’re incapacitated.
If you don’t put these wishes on paper and name someone you trust to uphold them, it’s likely a judge won’t appoint your chosen decision-maker. In this case, the person the judge chooses can make whatever decisions for you they feel is best, even if that means ignoring your chosen gender expression or identity.
No one expects to become incapacitated due to an illness or injury, but sadly, it happens. Legally naming a decision maker in advance and talking about your wishes with them and your extended family helps safeguard your rights and ensures that your wishes for how you are cared for are honored while avoiding family conflict as much as possible.
Work With a Lawyer Who Understands You
Protecting your family and your wishes as an LGBTQ+ individual requires the guidance and expertise of a lawyer who understands your unique circumstances and desires for your family. That’s where we come in.
While the law may still fall short in accommodating the diverse family structures and dynamics that exist today, we understand that every family is different, and we know how to craft a custom plan that not only protects your loved ones and ensures your wishes are honored, but also embodies the values, beliefs, and stories that make your family unique.
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