With the transition to a new administration, many LGBTQ+ families are understandably concerned about how changes in laws and policies might impact their rights. Estate planning has always been a crucial tool for ensuring legal protection and peace of mind, but it takes on added importance during periods of political and social uncertainty.
As an ally to the LGBTQ+ community, I want to offer guidance, support, and resources to help protect what matters most to you—your family. In this post, I’ll explain why estate planning is vital for LGBTQ+ individuals and families, explore the unique challenges you may face, and provide actionable steps to safeguard your loved ones.
Why Estate Planning Matters More for LGBTQ+ Families
For decades, LGBTQ+ families have faced systemic barriers to equal rights, particularly when it comes to marriage, parenting, and inheritance. While strides like the Obergefell v. Hodges decision secured marriage equality, political shifts raise concerns that some rights could be rolled back or undermined.
Even in the most favorable circumstances, estate planning is about control—ensuring that your wishes are honored and that your loved ones are cared for in ways that reflect your values. For LGBTQ+ families, it’s also about resilience—crafting legal safeguards that endure, no matter what happens in the courts or legislatures.
Without proper estate planning, you risk having decisions made by state laws that may not recognize non-biological relationships or chosen family members. Taking proactive steps today can save your loved ones from unnecessary disputes, legal battles, or financial uncertainty in the future.
Key Estate Planning Tools for LGBTQ+ Families
1. Last Will and Testament
A will is the foundation of your estate plan. It allows you to:
- Designate who will inherit your assets.
- Name a guardian for minor children.
- Specify who will act as executor to manage your estate.
Without a will, state laws determine who inherits your property, which may exclude partners, chosen family, or other loved ones if you’re not legally married. These are especially useful if you are in a long term relationship with an unmarried partner.
Unfortunately, some LGBTQ+ families face challenges from extended family members who may not recognize or respect their relationships. A clearly written will minimize the risk of disputes by explicitly stating your intentions and help avoid situations where estranged biological relatives contest your partner’s or chosen family’s right to inherit.
2. Revocable Living Trust
A revocable living trust is a powerful estate planning tool that provides LGBTQ+ families with flexibility, control, and privacy in managing and distributing their assets. For LGBTQ+ individuals and families, a revocable living trust addresses many of the unique challenges they face, offering enhanced protections and peace of mind
A trust is a flexible tool that provides more control over how your assets are managed and distributed:
- Avoids Probate: Assets held in a trust don’t go through the public and often lengthy probate process.
- Ensures Privacy: Your financial affairs and family dynamics remain confidential.
- Offers Customization: You can specify conditions, such as providing for children’s education or long-term care for a partner.
3. Durable Power of Attorney
This document allows you to appoint someone to manage your financial affairs if you become incapacitated. For LGBTQ+ individuals, this ensures your partner or chosen family member has legal authority to handle critical matters like paying bills, accessing bank accounts, or managing property.
4. Advance Healthcare Directive
An advance directive or living will outlines your preferences for medical care if you’re unable to communicate them yourself. It also allows you to appoint someone you trust to make healthcare decisions on your behalf.
For LGBTQ+ couples, this document is vital in ensuring your partner has a say in your medical care, especially if your relationship isn’t legally recognized. Generally a spouse has say in how their spouse is treated, if you find yourself in a place that does not recognize your marriage you will need something that gives you a say.
5. Guardianship Designations
If you have children, designating guardians in your will is critical. This ensures your children are cared for by the person or people you trust most, rather than leaving the decision to a court. For LGBTQ+ families, this is incredibly important to establish since your spouse may not have parental rights automatically. If you are not in a situation where you can do a confirmatory adoption, designating a guardian and your wishes should you pass, is a tool to assist the court and your family on how to ensure your children are well cared for.
6. HIPAA Authorizations
Without a HIPAA release, healthcare providers may refuse to share your medical information with your partner or chosen family member. This simple document ensures your loved ones can access the information they need to advocate for your care.
Unique Estate Planning Challenges for LGBTQ+ Families
1. Protecting Parental Rights
For non-biological or non-adoptive parents, securing parental rights is crucial. Even if both partners are listed on a child’s birth certificate, some states may not fully recognize this without formal adoption or parentage orders.
Including guardianship provisions in your estate plan can reinforce these rights and help avoid custody disputes if the biological parent dies or becomes incapacitated.
2. Marriage Protections
While same-sex marriage remains legal nationwide, changes to federal or state laws could create complications. A comprehensive estate plan ensures your partner is recognized as your legal spouse for inheritance, healthcare decisions, and more—even in a less supportive legal environment.
3. Blended and Chosen Families
Many LGBTQ+ individuals have blended families, stepchildren, or chosen family members who may not have legal recognition. Estate planning allows you to prioritize these relationships, ensuring they’re included in your plans.
What Could Change Under the New Administration?
Political shifts often bring uncertainty, particularly for marginalized communities. While it’s impossible to predict the future, potential areas of concern include:
- Marriage Equality: Challenges to Obergefell v. Hodges could complicate legal recognition of same-sex marriages.
- Adoption and Parental Rights: Policies could arise that limit adoption rights for LGBTQ+ couples or non-biological parents.
- Healthcare Access: Changes to healthcare regulations could impact partner visitation rights or access to medical decision-making.
Even if these rights remain intact, having a robust estate plan ensures your family is protected regardless of future legal changes.
How to Start Your Estate Plan
- Step 1: Take Inventory
- List your assets, debts, and important relationships. This helps identify what you need to protect and who you want to include in your plan.
- Step 2: Prioritize Your Goals
- Decide what matters most—whether it’s protecting your partner, providing for your children, or ensuring a chosen family member has access to your medical records.
- Step 3: Work with an LGBTQ+-Affirming Professional
- Choose an attorney or financial planner experienced in working with LGBTQ+ families. They’ll understand your unique needs and can help navigate complex legal issues.
- Step 4: Keep Your Plan Updated
- Review your estate plan regularly, especially after major life events like marriage, divorce, or the birth of a child. Changes in the law may also require updates to your documents.
Resources for LGBTQ+ Families
- National LGBTQ Task Force: Offers advocacy and resources for LGBTQ+ rights.
- Lambda Legal: Provides legal guidance and representation for LGBTQ+ individuals.
- GLAD (GLBTQ Legal Advocates & Defenders): Focuses on legal protections for LGBTQ+ families.
You Are Not Alone
At its core, estate planning is about love—ensuring the people you care about are protected, no matter what. For LGBTQ+ families, it’s also about resilience and empowerment.
As your ally, Minella Law Group is here to help you navigate this process with compassion, expertise, and understanding. Together, we can create a plan that reflects your values and secures your family’s future, no matter what the future holds.
If you have questions or need help starting your estate plan, reach out today. Let’s build a foundation of security and peace of mind for you and your loved ones.
