The Importance of Estate Planning for the LGBTQIA+ Community
Estate planning is an essential step in protecting your assets and achieving your goals for the people you care about the most. For members of the LGBTQIA+ community, it can also serve as a powerful legal safeguard against unique challenges that are not always addressed by the law.
Although the U.S. Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide, legal vulnerabilities remain – especially for unmarried partners, chosen families, and blended families. A thoughtfully prepared estate plan can help ensure that your wishes are honored and that your loved ones are protected, both during your lifetime and after your death.
A comprehensive estate plan typically includes the following documents:
1. Last Will & Testament
Upon your death, any assets with a joint owner or designated beneficiary – such as “payable on death” or “transfer on death” – will pass directly to the named individuals without court involvement. However, for assets that are owned solely in your name that do not have a beneficiary designation, the law requires a formal legal process known as probate. Probate is a court-supervised process of validating your Will, settling any debts, and ensuring that your remaining assets are distributed according to your wishes. Financial institutions will require your Executor to present official documentation from the probate court to prove the Executor has legal authority to access those assets.
The court will honor your properly executed Will, which will detail the following information: (1) the name of your Executor, (2) the names of your beneficiaries, and (3) the name of your chosen guardian for your minor children.
- Naming an Executor
The Executor is the person who will facilitate the administration of your probate estate. The Probate Court is responsible for overseeing the distribution of your assets to make sure it is done in accordance with your Will. The Executor will be responsible for contacting financial institutions that hold your probate assets and transferring them to your beneficiaries as you have directed in your Will. It is important to name someone who you trust to carry out this process in this role. However, most Executors will hire an attorney to guide them through the probate process. - Naming Beneficiaries
The beneficiaries of your Will are the people or charities whom you want to receive your probate assets. You can name as many beneficiaries as you would like to receive your assets. Without a Will, state law determines who inherits your estate – which favors family members and excludes unmarried partners or chosen family. This can leave those closest to you without legal rights to your assets or your possessions. - Naming a Guardian
A Will is also vital for LGBTQIA+ families with children. If legal parentage or formal adoption has not been established for your children, naming a guardian in your Will can help safeguard your family structure and provide clarity about who will care for your children in your absence. The guardian is the person the court will appoint to make decisions on your minor child’s behalf and will also manage the assets the child inherits. The guardian will be responsible for taking care of your minor children in the event that something happens to you (and your spouse/children’s other parent).
A Will is necessary to ensure a trusted individual facilitates probate administration, to distribute your assets according to your wishes, and to name a trusted person who will be guardian of your minor children.
2. Revocable Living Trust
A Revocable Living Trust is an estate planning tool that is commonly recommended because it allows you to manage your assets during your lifetime – and decide exactly how your assets are handled after your death, outside of the probate process. Unlike a Will, which must go through probate, a Trust lets your estate bypass probate entirely for the assets it holds. This means faster, more private, and often less expensive management and distribution of your estate. A Trust ensures that your assets go directly to the people you choose and in the manner that you choose, whether that be outright to the individuals or held in trust and distributed over a period of years. Ultimately, a Trust gives you more options for planning beyond your passing and can provide continued support for your loved ones. For LGBTQIA+ individuals – especially those with complex family dynamics, blended families, or unmarried partners – a Trust is a tool for more detailed and future planning.
3. Durable Power of Attorney
A Durable Power of Attorney allows you to appoint someone you trust as your agent to handle financial matters on your behalf. The purpose of a Durable Power of Attorney is to give your agent the ability to make sure all of your bills are paid, to manage your bank accounts and investments, and to do anything else relating to financial matters. Without it, financial decisions could fall to the courts through the establishment of a guardianship where family members who may not honor your intentions or understand your relationships might be put in charge. Having a Durable Power of Attorney ensures your trusted person is in charge – not the courts or estranged family.
4. Advance Healthcare Directive
An Advance Healthcare Directive can be composed of two documents: (1) Health Care Power of Attorney and (2) Living Will.
The Health Care Power of Attorney is the document that allows you to designate someone as your agent who will have the authority to make health care decisions for you in the event you are unable to do so for yourself. In the document, you will give specific instructions to your agent to follow regarding your health care decisions. If there are no limiting instructions, your agent will have access to your medical records, can consult with your doctors and consent to medical treatment, and can also authorize the withholding or withdrawing of life-sustaining treatment in the event you are in a terminal condition or a permanently unconscious state.
The Living Will is a document you can also include with your Health Care Power of Attorney. The Living Will is the document that directs your physician to allow you to die naturally and only provide comfort care in the event you are in a terminal condition or permanent unconscious state and are unable to make decisions for yourself. In this document, you are the one authorizing your physician to withhold or withdraw life sustaining treatment instead of the agent you appoint in your Health Care Power of Attorney. In essence, the Living Will is an unequivocal expression of your desires regarding the provision or withholding of life sustaining treatment at a time you are no longer able to communicate those desires.
In medical emergencies, hospitals often default to next of kin. Without proper documentation, your partner or chosen family may be shut out of decisions or even denied visitation. These documents make sure your voice is heard and your people are empowered to act.
Conclusion
At Kohnen & Patton, LLP, we believe that estate planning should be inclusive, intentional, and affirming of your values, your relationships, and your identity. Our attorneys are experienced in working with LGBTQIA+ individuals and families to create plans that offer peace of mind. No matter your age, relationship status, or family structure, estate planning is an act of care and empowerment. If you are ready to take the next step or simply want to learn more, we invite you to contact us by phone or email. We are here to help you create a plan that reflects who you are and what matters most.