Having an estate plan in place for the future is vital for every family, but it’s especially crucial now for those in the LGBTQ+ community.
On June 26, 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the same right to marry as opposite-sex couples.
However, “the court today is much more conservative than it was in 2015 after two justices who supported same-sex marriage rights, Justices Anthony Kennedy and Ruth Bader Ginsburg, were replaced with Justices Brett Kavanaugh and Amy Coney Barrett, respectively,” per CNN.
H.R. 8404, the Respect for Marriage Act, signed into law by President Biden on December 13, 2022, establishes statutory authority for same-sex and interracial marriages. But with an uncertain future on the horizon, it’s never been more important to put formalized documentation in place with the assistance of an experienced estate planning attorney.
At the Law Offices of J. Jeltes, we understand the specific needs of LGBTQ+ families and are committed to providing compassionate, tailored estate planning solutions for all. Let’s explore key considerations to ensure your wishes will be carried out and your loved ones are protected.
Marital Status and Legal Recognition
While the 2015 SCOTUS ruling created new opportunities for LGTBQ+ and other nontraditional couples and families, it didn’t resolve every challenge.
In 2004, Massachusetts became the first state to legalize same-sex marriage; more than 35 other states and Washington, DC soon followed. Over 40 American tribal nations have recognized this expression of love and commitment, including the Cherokee Nation and the Leech Lake Tribal Court in Minnesota.
Prior to 2015, many LGBTQ+ couples seeking the legal protections of marriage entered into a domestic partnership or civil union. Certain states — Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont — specifically converted all civil unions into marriages.
This can have significant implications for estate planning, as assets typically flow directly to a spouse upon death. It’s critical to resolve any lingering legal ties from previous relationships to avoid potential claims, such as challenges to your relationships or rights to inherit, against your estate in the future.
Why Estate Planning Matters
According to the Illinois State Bar Association, many in the LGBTQ community “are less likely to be married and more likely to be ostracized from their families,” and form a strong support network of close friends. The ISBA also references the continued disparity between the health care of LGBTQ persons versus that of other demographics, which makes creating an advanced medical directive even more imperative.
Although same-sex marriage is now federally recognized in the U.S., discrepancies still exist in how some states interpret laws related to parentage, inheritance, and healthcare decision-making, especially for unmarried same-sex partners.
If an individual dies intestate (without a will), assets generally pass to the next of kin, usually a spouse. For those without the legal protection of marriage, you may face expensive and stressful obstacles when it comes time to make medical decisions and funeral arrangements or to inherit property or assets from your partner.
A well-crafted estate plan ensures that your assets are distributed according to your wishes, protecting your loved ones from potential disputes and financial hardship.
Essential Estate Planning Documents
Now is absolutely the right time to talk to your loved ones about your hopes and dreams for the future and put a comprehensive estate plan in place.
It’s common to feel overwhelmed by the mountain of details involved in estate planning. A compassionate and knowledgeable legal professional can guide you through the decision-making process and help you locate and gather the necessary documentation.
Everyone’s needs are different, and your estate plan should be tailored to your family’s specific needs. Here are some of the components to discuss with your attorney:
- Last Will and Testament
A will is fundamental for all couples, but it’s particularly crucial for LGBTQ+ individuals who want their assets passed to their partner, especially if they’re unmarried. Without a will, state inheritance laws may not recognize your partner’s right to inherit your assets.
- Durable Power of Attorney
This document allows you to designate someone to take specific actions on your behalf if you become incapacitated so your partner can manage your affairs if needed.
- Healthcare Power of Attorney and Living Will
These statements are vital for medical decision-making. A healthcare power of attorney designates someone to make medical decisions for you if you’re unable to do so, while a living will outlines your preferences for end-of-life care.
- Revocable Living Trust
A trust can offer more control over how your assets are distributed and can help avoid the probate process. This is particularly beneficial for same-sex or transgender partners who want to make sure their wishes are carried out without unwelcome interference from unsupportive family members.
For LGBTQ+ couples with children, ensuring legal parental rights for both partners is a significant element of a successful estate plan. Even if both partners are listed on the birth certificate, second-parent or step-parent adoption may be necessary to secure legal recognition and inheritance rights for non-biological parents. The Illinois Parentage Act explains four ways someone other than the birth mother can be a child’s legal parent.
Protecting Your Family’s Future: Next Steps
Estate planning is an act of love — a way to protect and provide for those who matter most. It’s an important opportunity to create legal security that reflects the depth and complexity of your relationships.
In the current environment, many in the LGBTQ+ community are taking extra steps to safeguard their loved ones and provide financial security and peace of mind.
The skilled and compassionate advocates at the Law Offices of J. Jeltes are here to help you navigate this and other major life transitions. Reach out and schedule a confidential consultation today!
