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LGBTQ Estate Planning PDF Print E-mail
Business & Finance
Written by Michelle Amar   
No matter how much we avoid the subject death and illness are a part of life.  For same sex couples such times can be even more stressful because the laws in most states are not written to protect your partner(s).  These events don’t only occur late in life, so it would be wise to take the time now to get everything in order. Then you and your partner can move forward and live a good life knowing these details are in place. 

What details, you ask?  Below are some pointers on good places to start, but keep in mind each state has different laws regarding these topics so be sure to research your state laws or spend some time with an attorney to finalize your plans. 

Money. Your checking, savings, retirement, stocks, bonds, and other such accounts should all have a beneficiary designation.  Be sure you have all of  beneficiary designations current and on file with your financial institutions. Also, request a copy for your records.  Not only will it help your partner to file the claims, it will ensure they have proof of your intentions with your money upon death.  Joint ownership of your accounts may be a viable option for you as well.  Under these arrangements, upon your death there are no claims, no inheritance taxes, and nothing to contest.  The secondary owner of the account simply becomes the sole owner with no claims necessary. 

Real estate.  There are two ways you can protect your real estate interests, either through the deed or through a will.  The most seamless way for your partner is through the deed as, like with joint ownership of financial accounts, upon your death the ownership simply moves to the partner as sole owner.  The most common deed approach for same-sex couples is called “joint tenancy with right of survivorship” which is a simple deed to execute either at the time of buying your home or soon afterwards. 

Wills.  While the approaches above will cover the bulk of your assets without the ability for anyone to contest the designations, and without probate being necessary, you should still have a will.  The will is to cover all of your other possessions to ensure it is clear what your intentions are concerning everything you own with your partner.  In most states civil unions are not recognized so by law all of your possessions will not automatically go to your partner no matter how long you have lived together.  Making a will before you become ill will also help your partner in the case it is contested later.  As long as the will is made while you are of sound mind with no undue influence from a beneficiary there is very little chance your will could be successfully contested.  If you are already ill, have a medical professional sign a statement noting you are of sound mind and are in a condition to make informed decisions on your will. 

Funerals.  In most states your “next of kin” has the legal right to your deceased body and to decide what to do for funeral arrangements.  You can do two things to ensure your partner is not omitted from this process.  First you can work with a funeral home and make all of your arrangements in advance.  Or if you don’t want to take that step now, you can have your wishes included in your will to give your partner full decision making power over your remains and funeral arrangements. 

Illness.  You should also be prepared for the possibility of a prolonged illness.  As in all the cases mentioned above, your same-sex partner has few, if any, rights concerning your medical care decisions.  They can even be banned from entering your hospital room by your family.  To ensure your partner has full legal authority over your medical and financial decisions during an illness, a Medical and Financial Power of Attorney is invaluable.  Be sure to include HIPAA language giving them full access to your medical information.  Recent high profile cases have also shown it is not enough to verbally tell your partner or family of your wishes should you have a terminal illness.  A living will is an important document to not only create, but to share with your partner, family, and have on file with your physician. 

None of these topics are fun to think about.  Making these arrangements is not something any of us looks forward to doing.  However for same-sex couples a few weeks of work now can avoid months or years of difficulty later.  With a little planning you can spare your already distraught partner more grief.