Estate Planning and the LGBTQ Community
For starters, “Estate Planning,” is just a high falutin’ way of describing a written plan to make sure, after you die, your assets (the stuff you own) passes in an orderly and efficient manner to the person, persons or organizations you name. Essential Estate Planning documents are a Living Revocable Trust, there are also other types of Trusts intended to achieve different estate planning objectives Last Will and Testament, Disposition of Remains, Separate Writing, Schedules A & B, Directives to Trustee and/or Executor, etc. More about all of these and other documents may be found in our Estate Planning Workbook.
1. If Your Relationship is not Legally Recognized, You Are Invisible. Period. You may think the love and responsibilities you share with your partner are exactly the same as your heterosexual family and friends, but unfortunately, that is not the case -- the law sees it another way.
A marriage bestows concrete legal and tax benefits to heterosexual married couples. Sadly, the same laws that bestow those benefits do not recognize same same-sex couples – we are "invisible" in the eyes of the law and therefore have no legal relationship to one another.
Since the law treats gay and lesbian couples like legal strangers, we must create legal rights and protections through the use of estate planning documents and contracts.
2. The "Estate Plan" You Cannot Afford to Use! If you and your partner have not created Estate Planning documents, including a Last Will and Testament, your State has prepared an estate plan for you -- free of charge!
This free estate plan is referred to as "intestacy" or “intestate succession.” Under your State’s intestacy laws, your elected officials were kind enough to assume that they know best how you would want your estate to be distributed. And of course, since state laws tend to discriminate against same-sex couples (at the very least they do not acknowledge our right to exist), when we die without a Last Will the law assumes we would want our estate to pass to our biological relatives. And only after much of the value has been used up in a costly and time consuming probate proceeding.
Your biological relatives consist of (in this approximate order of importance) your legal (heterosexual) spouse, your children, you parents, your siblings, your aunts and uncles, your nieces and nephews, your cousins, and so on. If you have no biological relatives then the State will inherit your estate.
Nowhere on this list does it mention your same-sex partner. In order to include your partner, you must put your wishes in a legal writing!