Our Estate Planning Lawyers welcome LGBTQ+ individuals and couples and hope this LGBTQ+ estate planning checklist can guide you in the right direction.
Although same-sex marriage has been accepted by law since 2015, the LGBT community still faces resistance in many areas of life, including estate planning.
Estate Planning Checklist for LGBTQ+ Partners
- Find an estate planning lawyer.
- Know your marital status.
- Draft a will.
- Consider creating a trust.
- Appoint a power of attorney and instructions.
- Appoint a healthcare power of attorney.
- Draft a living will.
- HIPAA Authorization.
- Plan for your children’s future.
- Funeral directives.
- Protect your rights.
Find an Estate Planning Lawyer
While many websites offer estate planning templates, these are not advised, especially for LGBTQ+ couples who may require more complex planning and hurdles. By talking directly with an experienced and reputable lawyer familiar with your state’s laws, you can overcome the issues facing the LGBTQ+ community.
Feel free to contact our estate planning lawyers today for a free consultation regarding your estate plan.
Know Your Marital Status
If you’ve never been previously married, in a registered domestic partnership or civil union, then you can skip this one.
As most assets pass directly to spouses upon death, it’s important to know that past relationships are truly in the past. While the U.S. legalized same-sex marriage in 2015, the framework of old state laws can have a knock-on effect on estate planning for same-sex couples.
Some couples may have married in states where it was legal before 2015, before moving to states that didn’t recognize those marriages. They may later have found that their marriages never legally dissolved when they broke up. Some states also automatically converted domestic partnerships or civil unions into legally recognized marriages.
Draft a Will
Every individual should draft a will. If you don’t, you’ll have no say on what happens to your estate, assets and belongings after your death. However, for LGBT couples, it’s even more important than usual.
Without a will, estate distribution would usually be determined by Florida’s Intestacy Laws.
But in Florida, the intestacy laws don’t recognize same-sex couples. So if you don’t have a will, your partner will be left with nothing – regardless of the length of your relationship.
Therefore, your number one estate plan priority should be to draft a will. A will should include:
- Your partner’s name and nature of your relationship (such as marriage, civil union, domestic partnership, committed life partners)
- Your wishes for estate and asset distribution, including the beneficiary names and what they should receive.
- A personal representative (the person responsible for handling your estate and will).
- Your wishes for minor children and your status (legal parent, or spouse or partner of the legal parent).
- Your wishes for pets.
- Funeral arrangement wishes.
Read Related: What You Should Never Put in Your Will
Consider a Trust
Trusts are legal instruments that can hold ownership of assets and money. They can be used for more complex and customized estates planning, such as tax management, asset protection and long-term distribution plans.
If you leave your assets to your LGBT partner, they will be at risk of creditors, future spouses and federal taxes.
However, if you create an Irrevocable Trust, you can shield these assets from creditors and other threats. It can also be a useful idea for long-term family planning. For example, you can include terms such as only allowing your minor child access to funds when they turn 21.
Contact an estate planning lawyer for expert advice before deciding on important decisions regarding trusts.
It’s estimated that 49% of the LGBTQ+ community owns a home, compared to 64% of the total U.S. population.
The LGBTQ+ community is reported to be 12.2% more likely to have federal student loan debt than non-LGBTQ+ community members.
Power of Attorney Instructions
A General Durable Power of Attorney (GPOA) is an individual selected to act on your behalf if you can no longer make important decisions.
They’ll have the legal power to act on your finances, such as mortgage payments, bank deposits, bill payments and keeping your business running. They can have as little or much control as you wish.
Healthcare Power of Attorney
You should also appoint a Healthcare Surrogate and Durable Power of Attorney (HCPOA). This individual has the legal right to make health care and medical decisions on your behalf, should you become incapacitated.
Your HCPOA can decide upon end-of-life decisions, treatment and medication. Without an HCPOA, a hospital can prevent ‘non-family member’ hospital visits. This is especially true if another family member objects to a non-family member’s visit. So for LGBTQ+ partners, it can be a relieving way to ensure you are never excluded in times of need.
A living will records your end-of-life wishes. So your partner doesn’t face painful decisions or pressure over what you would want regarding medical care or life support.
A HIPAA Authorization provides your loved ones the right to obtain copies of your medical records under federal regulations. This can be critical when filing insurance claims or making informed decisions.
Plan for Your Children
When the parents of a child pass away, their assets usually pass to their children. However, as many LGBTQ+ parents choose to adopt or have only one biological parent, they may have to take some extra steps in their estate plan.
This may include creating a trust or providing more detail in your will than usual.
You should also appoint a guardian who will look after minor children should you die while they’re young. This is critical, especially for LGBTQ+ couples, who may not want their children to live with certain family members.
If you don’t include funeral directives in your estate plan, you will leave the responsibility to your relatives, not your partner. In some LGBTQ+ related families, this may cause significant tension and even see your partner barred from attending the funeral if your family objects. Avoid tensions by clearly stating your funeral directives and the responsible person in your will.
Protecting Your Rights
Nobody wants to think of what will happen when a relationship ends, but it is a step that can protect everyone should things ever turn sour. A written agreement can clarify your rights and responsibilities.
- Domestic Partnership Agreements (DPA): These agreements are very useful for unmarried couples. It will define property ownership, division of expenses, bank accounts and assets.
- Prenuptial Agreements: Useful for couples planning a marriage, this can pre-determine the rights of marriage should it ever end. It is legally binding and can be used in a divorce hearing.
- Postnuptial Agreements: Used by already married couples.
LGBTQ+ Estate Planning Checklist FAQs
Can I Give My IRA to My Partner?
By naming your partner as a beneficiary in your retirement accounts, you can avoid worrying about them needing to liquidate the plan.
Federal law allows anyone to be a beneficiary or a 401k or IRA. On the flip side, naming a partner as a beneficiary does expose assets of the plan to your partner’s creditors and surrenders your control of the IRA after your partner’s death.
You should contact an estate planning attorney who can provide expert legal advice relevant to your situation.
What Happens If My Partner Doesn’t Have Legal Custody of Our Child, But I Do?
In your will, you can state who you would like to be your child’s guardian if you pass away. While decisions will always be made in the child’s best interest, having this in your will with clear reasons can be very powerful. Naming your partner as a trustee of a trust for your child can also be beneficial.
Are My Estate Planning Wishes Public?
In Florida, only your will can become public. If you wish to maintain the privacy of your wishes, you can use a trust as part of your estate plan.
Contact an Estate Planning Attorney Today
We hope this LGBTQ+ estate planning checklist has helped guide you through Florida’s estate planning fundamentals. For more personal and advanced support, we welcome you to contact our Florida estate planning attorneys today for a free consultation.
Battaglia, Ross, Dicus & McQuaid, P.A. is U.S. News and World Reports Tier 1 law firm in Florida, specializing in Estate Planning & Probate since 1958. With award-winning experienced estate planning attorneys, they can help you create a water-tight estate plan that protects your rights and wishes.