The Importance of Estate Planning for LGBTQ Parters
Many families we’ve talked to believe that their partner would be the person to make medical and financial decisions if something were to happen to them. And, they believe that their partner would handle probate and distribute out the property.Unfortunately, the law doesn’t allow your partner to make medical decisions, financial decisions, or act as your personal representative without legal documentation naming your partner. This is true whether you’re married or not. Without proper documentation in place, your partner would need to ask the court for permission to act on your behalf or on behalf of your estate. And, unfortunately, it gets expensive pretty quickly once you start adding on court fees and attorney’s fees. Not to mention, it’s not always a quick process.
If you were ever in a situation where you end up in the hospital, for example, and you want to make sure your partner has access to your medical records and the ability to make decisions if you’re not able to make them yourself, it’s important to have advanced medical directives in place. Your advanced medical directives should include three parts: a living will stating your wishes, a healthcare proxy to name the people you’d want to make your medical decisions if you were unable to, and a HIPAA authorization so your healthcare providers know who they can communicate with.
It’s also important to think about the financial implications of potentially being in a situation where you’re unable to pay bills yourself, file your taxes, and handle other day-to-day financial decisions. By naming your partner in a power of attorney, you’re allowing your partner to act on your behalf to make sure that your bills get paid, money owed to you gets collected, taxes get filed, etc.
If you have children under 18 at home, it’s also important to look at whether your partner has adopted the children or not and what your goals would be if something happens to you. Guardian nomination forms are very important in scenarios where there hasn’t been a second parent adoption. When planning for guardianship, you want to consider both long-term and short-term guardians for your minor children. So, for example, if you were in the hospital, who would you want to temporarily watch the children until you could get back to them? Or, if you were to unexpectedly pass away, who would you want to raise your children? Who could stay with your children temporarily until your long-term guardian could get to them? Without making these decisions ahead of time, it’s up to a court to find the person they think is best suited to raise your children. And, in the meantime, it leaves open the possibility of your children ending up in the care of strangers temporarily.
When creating your estate plan, you’ll also want to consider whether you would like a revocable trust or a will based plan. Many of our families opt for the revocable trust to help protect assets because it gives partners greater flexibility. It also provides for a lot more privacy than a will. You’re able to provide more instructions and safeguards, while still making sure that the assets in the trust are immediately available when you pass away. That being said, a will should also be prepared in case there are assets that haven’t made it into the trust before you pass away.
Whether you’re married or not, having a plan in place not only ensures that you’re protecting yourself, it also makes life and decisions easier for your partner. Unfortunately, the law doesn’t always work the way people want it to or think it does. There are a lot of myths out there. The best way to see what’s true with your situation is to meet with an attorney and review your goals.
If you’d like to learn more about what would happen in your specific situation, call our office or schedule your appointment online. We hope to see you and your family soon!