Effective estate planning for LGBTQ+ families can ensure the continuity and success of your surviving family members. If you haven’t updated your estate plan since the 2015 Supreme Court decision that legalized same-sex marriage, reviewing and adjusting your end-of-life plans is vital. If you’re unmarried, estate planning is even more important since there are no legal guarantees that your assets will transfer to your partner.
As a result, LGBTQ+ clients have many questions when it comes to ensuring that they and their loved ones are protected in the event of death or incapacity. Here are some of the most common client questions received by the experienced estate planning attorneys at OC Wills & Trusts.
To get answers to specific questions and learn more about getting started with an estate plan, contact OC Wills & Trusts today.
Will my property pass to my same-sex partner after my death?
If you and your partner are married, your property will pass to them after your death if you live in a state that recognizes same-sex marriage.
However, civil unions and domestic partnerships don’t afford you the same rights as marriage. Furthermore, state laws differ on what rights one same-sex partner has following the death of the other.
How can I ensure that my property is passed to my partner if we aren’t married?
You’ll need to designate your partner as the inheritor of your property. An estate planning attorney can work with you to identify the best way to achieve this. Establishing a revocable living trust and a last will and testament are two popular choices, but a less-common option might work best for your family.
Do my spouse and I need an estate plan if we’re married?
Yes. If you’re married, the property should pass to the surviving spouse. However, there are many other reasons to work with an estate planning attorney.
An estate plan can significantly reduce taxes and legal fees incurred by probate, ensure that your assets pass more quickly to your spouse, and guarantee that your spouse has access to assets in your name if you die or become incapacitated.
Will my spouse have to pay estate taxes on the property they inherit?
Possibly. The benefits of the Defense of Marriage Act (DOMA) only extend to federal benefits and marriage under state law. If same-sex spouses now or in the future live in a state in which same-sex marriage isn’t recognized, the surviving spouse will likely have to pay significant estate taxes.
What areas of inheritance laws are not protected by DOMA?
In states that recognize same-sex marriage, spouses are granted many of the same basic rights afforded by marriage. However, should spouses relocate to a state that doesn’t recognize same-sex marriage, their rights can be severely limited.
Some areas in which rights are not protected include:
- Homestead protection
- Elective share rights (entitlement to minimum inheritance from spouse)
- Ability to own property by tenancy-by-the-entirety
- Government benefits
- Spousal retirement benefits
An estate planning attorney can work with you to arrange your affairs so that one spouse’s rights are protected after the other’s death.
Will guardianship of one partner’s children automatically pass to the other?
No. If only one partner is a child’s legal parent or guardian, guardianship won’t automatically pass to the survivor, regardless of whether they’re married.
How can I ensure that guardianship of children passes to my partner?
If your partner isn’t the legal parent or guardian of your child, the courts decide who’s appointed guardianship of your children.
Courts tend to give greater weight to a child’s biological family. That said, preparing documents that nominate your spouse as the guardian of your children can significantly impact their decision.
How can an estate planning attorney help protect my LGBTQ+ family?
An estate planning attorney has expertise in areas like inheritance, guardianship, and incapacity. As such, a lawyer knowledgeable in LGBTQ+ rights and laws can help protect your family in areas that include:
- Homeownership
- Access to assets
- Custody of minor children
- Ability to make medical or financial decisions if one partner becomes incapacitated
- Ensuring that beneficiaries are designated on life insurance policies
- Planning to help an estate avoid probate court
- Minimizing the impact of estate and inheritance taxes
- Planning to avoid family members attempting to contest a will
- Ensuring that the spouse has the right to make burial arrangements
An attorney can help arrange your legal affairs in a way that protects your family when one partner dies or becomes incapacitated.
Speak with a California Estate Planning Attorney Today
Failure to understand and plan for the ways that inheritance laws can impact a non-traditional family can lead to tragic, unanticipated outcomes for the partner and children left behind.
The only way to guarantee that your family is protected is to have a thorough estate plan created with the assistance of an attorney who understands the concerns unique to LGBTQ+ families.
OC Wills & Trusts is a California estate planning law firm. Our experienced attorneys know the inheritance and end-of-life legal challenges LGBTQ+ families face. We’ll work to create an estate plan that protects your family following a life-changing event.
Contact OC Wills & Trusts today to speak with one of our California estate planning attorneys.
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