Estate planning is a critical process for everyone, but LGBTQ couples face unique challenges that require special attention. Although the legalization of same-sex marriage in 2015 (Obergefell v. Hodges; Respect for Marriage Act) granted LGBTQ couples many of the same legal rights as heterosexual couples, the legal landscape continues to evolve. LGBTQ individuals may still encounter discrimination and obstacles when securing their loved ones' futures.

Healthcare Considerations

Without advance directives, a same-sex partner may be denied the ability to make critical medical decisions or even be denied visitation rights in healthcare facilities. While married couples generally have these rights under the law, having backup documentation is crucial, particularly in the event of encountering a hostile medical team. Establishing healthcare powers of attorney and living wills can help LGBTQ couples avoid these potential pitfalls and ensure that their end-of-life wishes are honored.

In addition to standard healthcare powers of attorney and advance directives, LGBTQ+ individuals may wish to include specific details about their gender identity and expression. Healthcare providers might become hostile or confused if they are unaware of gender-affirming surgeries or other aspects of a person’s gender identity, particularly if a Queer individual develops dementia, and their identity is mistakenly disregarded as a symptom of the condition. Clearly stating your preferred name, pronouns, gender identity, and gender expression in your directives is crucial to ensuring your wishes are respected.

Financial Considerations

While married couples, whether queer or straight, share many rights, they do not have automatic access to each other’s finances. To ensure a spouse can access the other’s bank accounts or manage financial responsibilities, such as paying for nursing home care, a financial power of attorney is required. This document allows the appointed agent to act on behalf of the principal and manage financial affairs. However, the power granted expires upon the death of the grantor.

To ensure your spouse or chosen family members receive your assets upon your death, it is essential to have beneficiaries listed on all accounts and/or a will. These documents allow your assets to be transferred according to your wishes, rather than based solely on state law. Clearly documenting your intentions can also prevent hostile or estranged family members from inheriting your assets. An experienced estate planning attorney can help you ensure that the people you choose receive your assets.

For additional information on holistic planning for LGBTQ individuals, consider reviewing Lambda Legal’s Guide and SAGE’s Advance Planning Tool Kit.

Conclusion

Estate planning for LGBTQ couples requires a comprehensive and strategic approach to ensure their wishes are respected, their loved ones are protected, and their rights are upheld. By working closely with experienced estate planning attorneys who understand the unique challenges faced by the LGBTQ community, LGBTQ individuals and couples can take the necessary steps to secure their legacies and provide for their families, even in the face of a constantly evolving legal landscape.

‍