Three Estate Planning Strategies for Same-Sex Couples

gay estate planningThough no one likes to think about ones own mortality, it is important for same-sex couples to do some advance planning in the event of their death or incapacitation. Those couples living in states that no not permit marriage — or do not offer civil unions or domestic partnerships that include inheritance rights — especially need a will. Keep in mind that when there is no legal recognition of same-sex unions, gays and lesbians are often left with nothing upon the death of their partner. To avoid losing your home, your personal belongs, and, in some cases, your children, ensure that both you and your partner begin the estate planning process as soon as possible.

First, two common questions:

What is estate planning?

The process of estate planning merely refers to making decisions in life about what will happen at death. In addition to enabling you to control the disposition of your assets so that your belongings will go to the people you want, estate planning documents are also useful for naming the individual you want to make legal decisions for you should you become incapacitated, outlining your wishes when it comes to medical treatment, and indicating who you would like to parent your children should you pass away.

Isn’t estate planning just for the rich?

Absolutely not! The word ‘estate’ tends to evoke imagery of mansions and diamonds, but the truth is that everyone, even you, has an estate. In legal terms, an ‘estate’ simply describes the collection of all your property at death. This includes your car, your house, any bank accounts, stocks, a stamp collection, your clothing, your pet, and anything you can think of that you own. The value of ones estate can be as small as a few thousand dollars, or as large as several billion; you do not have an ‘estate’ just because you are rich. While the wealthy tend to take estate planning more seriously as there are taxes they wish to avoid, same-sex couples also need to seriously consider this process because your partner often has no legal rights or claims in the event of your death.

Incorporating the following three strategies in an estate plan helps to ensure that all of ones goals are met:

  1. Choose an attorney who will work with you
  2. Plan for a system to update your estate plan
  3. Include a living will

Choose an attorney who will work with you

Be wary of so-called “will mills” that act as legal document services and offer to send you a prepared will after answering a few questions about your plan. Estate planning is about more than just drafting a legal document; it is about a competent attorney figuring out what your plans are and what will be best for you and your family. Many estate planners simply focus on reducing your tax liability, but a good counseling-oriented lawyer will interview you and make sure to incorporate appropriate and tailored protections for catastrophic disability, divorce or separation, remarriage or re-partnership, a plan for any minor children, and other considerations that go beyond simple property distribution. If you feel that you do not have an attorney who is listening to your needs and goals and ensuring that these needs and goals are reflected in your estate plan, pick another attorney.

Finding a lawyer with experience in gay and lesbian estate planning is wise as well. Same-sex couples face a few hurdles that opposite-sex, married couples do not, and an attorney who is unaware of this may leave gaps or errors in your estate plan. Any mistakes your lawyer makes will not become apparent until you are deceased and it is too late, so avoid the future headaches and select an experienced LGBT estate planner.

Plan for a system to update your estate plan

Many individuals make the mistake of drafting their estate plan and then never updating it. Changes in your wishes, the property you own, and your relationships (marriage, divorce, or separation) should be reflected in updated documents. Not all changes require a complete re-execution of your will, but some may. This is another reason a competent attorney is preferable to a “will mill”. Many estate planners offer a service where, for an annual fee, you can return to your attorney to make changes to your estate plan. Your attorney will also update your will to comply with changes to the law. While an annual fee may sound undesirable, especially to a 30-year-old not planning to die for a while, the expense is usually less in the long run as you do not have to later pay for an entire redrafting if your situation ever changes.

Include a living will

The horror stories you hear about gay couples being denied the ability to be together when one is in a hospital room can usually be avoided with a living will. Often also called “medical powers of attorney” or an “advanced directive”, this document enables you to name the person you would like to make medical decisions for you in the event of your incapacitation. Many bitter battles have been fought between an LGBT individual’s family and his/her partner when there is a disagreement about whether or not to ‘pull the plug’. You can save a lot of heartache by making your wishes clear and naming an individual you can trust to carry out your wishes. This person will also make decisions for organ donation and the disposal of your remains.

While it is easy to write off estate planning as necessary only for the elderly or terminally ill, remember that tragedies can happen in an instant. Many gays and lesbians have had to deal with legal troubles in addition to their personal grief when a sudden accident strikes their partner. You can give both you and your loved ones additional peace of mind by taking care of your estate plan early.