Estate Planning Questions For LGBTQ+ Couples
Every couple who looks ahead to the future is bound to have at least a few estate planning questions. The cultural tensions and legal developments of the past few decades have left many LGBTQ+ couples harboring even more of these questions than many of their straight peers. You may find it reassuring to know that in most cases, the “extra” precautions LGBTQ+ couples may wish to consider are very similar to those followed by straight couples in blended families, long-term unmarried partnerships, or any of the other myriad configurations that make up the mosaic of human relationships. You may also find it helpful to speak with an estate planning attorney to discuss your specific areas of concern and gain the benefit of tailored guidance. Call 561-559-6214 to schedule a consultation with Loughlin Law, P.A. today.
Historical Bedfellows: Marriage, Estate Planning, and the Transfer of Property
The estate planning questions LGBTQ+ couples may need to ask are, in many respects, not far removed from those asked by straight couples. This is of particular note when those couples (gay or straight), for one reason or another, have chosen not to legally marry. The reason for the similarity is also essentially the reason for the differences: Laws regarding both marriage and estate planning were developed over centuries, with the transfer of property as the principal goal in each case.
The Unromantic Relationship Between Marriage and Estate Planning
Even today, when most weddings – regardless of the genders or sexual orientations of the partners involved – are planned as public demonstrations of romantic love and a way of celebrating a deeply personal mutual commitment, the laws regarding divorce are primarily focused on the division of property and determining how responsibility for the upbringing of any children will be shared. Estate planning and this traditional, property-oriented view of marriage have, to a large extent, gone hand-in-hand.
Elective Shares and Legal Frameworks
Most states, including Florida, have laws on the books that will override a decedent’s Last Will and Testament to reserve a share for a widowed wife or husband, if the Will makes no provision for the spouse left behind. Not even an individual’s own children can take precedence over the elective share of the surviving spouse in this respect – although intestacy laws, in Florida and in most other states, do center a decedent’s children in the essentially hierarchical system by which an individual’s property is distributed if they die without a legally valid Will.
Love Is Love, and Law Is Law
Many LGBTQ+ couples now asking estate planning questions are old enough to have championed their right to legally marry under the banner of “love is love” long before the Supreme Court of the United States (SCOTUS) handed down its landmark decision in Obergefell v. Hodges. Much of the advocacy behind those pre-Obergefell efforts centered on the interpersonal aspects of both marriage and estate planning: Spouses enjoyed automatic recognition as parents of their shared children by schools and pediatricians. They were treated as each other’s “default” next-of-kin in life-threatening emergencies and deathbed decisions. When one spouse survived the other, probate courts recognized that the spouse still living had special rights to their partner’s estate, which might include not just financial assets but personal belongings in a formerly shared household.
All of these considerations are deeply personal, and for most people, so are their estate planning questions. This is true regardless of the gender identities of the individuals involved. Whereas many straight people are habituated through cultural narratives to accepting as a given the “colder” aspects of the legal framework that encompasses both marriage and estate planning, however, those same aspects can sometimes feel jarring to individuals who have fought hard for the right to a legally recognized relationship precisely out of the deeply personal desire to build a life with the partner of their choice.
Asking the Right Estate Planning Questions
To a significant extent, the estate planning questions LGBTQ+ couples need to ask today are substantially similar to those asked by their heterosexual counterparts. One potentially complicating factor is that many LGBTQ+ couples who are now legally married have become concerned, in the past few years, about the potential for the Supreme Court’s ruling in Obergefell to be overturned. Trying to anticipate future legal developments is always something of a risky endeavor, but estate planning can draw the issues into particular focus – estate planning tools must be designed to work with the laws that exist at the time they are drafted, but they are intended to work in what the planner normally hopes will be a relatively distant future.
Estate Planning for Unmarried Couples
LGBTQ+ couples who have never legally married can, in most respects, follow the same estate planning guides as their straight unmarried peers. Often this will mean looking for ways to specify your partner as an individual, rather than relying on “my spouse” language in your estate planning documents – but Boca Raton residents may want to consider sitting down with an estate planning attorney at the Loughlin Law, P.A. office to go through their specific intentions and develop appropriate phrasing that will ensure the finished documents are both accurate and legally valid.
Approaching Estate Planning Questions as Spouses
LGBTQ+ couples who are legally married, but who have concerns about whether courts in Florida and across the United States will continue to recognize marriage equality over the coming years, may wish to take the further step of asking, for each estate planning question they consider:
- Does this provision depend on the legal recognition of our marriage?
- Is there a way to frame this provision so that it is legally valid regardless of my relationship to the person named?
Working with an attorney familiar with your state’s estate planning laws and probate code can be extremely helpful here, as the requirements for ensuring the legal validity of estate planning documents are often quite intricate.
Incapacity Planning: How Do You Want To Be Cared For, and by Whom?
The answers to some estate planning questions can have significant impacts not only on the disposition of your property after death, but on how you are cared for in your final hours or even years of life. Estate planning tools like a durable power of attorney, created under Fla. Rev. Stat. § 702.2202, and the designation of a surrogate for healthcare as provided in Fla. Rev. Stat. § 765.203, can ensure that the person you most trust has the authority to handle your finances and make end-of-life decisions if you become medically incapacitated and are unable to make those decisions on your own behalf.
Most people who are married do designate their spouses for these roles, and unmarried partners in long-term relationships often designate each other for much the same reasons. Married or unmarried, creating the formal documents – known as instruments – that legally empower the person you name to act on your behalf in the event of your incapacity is an important step toward securing your own future and minimizing your loved ones’ stress.
Transfer of Property: Who Should Receive Your Property Once You Are Gone?
Spouses sometimes rely on Florida’s intestacy laws to make sure that their partners and children will inherit their property in due course. An estate planning attorney in Boca Raton will almost always recommend against this course of action or inaction, even for the most traditional relationship. For unmarried partners, individuals in second or subsequent marriages, and LGBTQ+ couples, developing a comprehensive suite of airtight estate planning documents is even more essential.
Preparing a Will
A Last Will and Testament will likely not be the only estate planning tool you will need to secure your legacy and make sure that the people you deeply value in life can benefit from the personal belongings and financial assets you leave behind once you are gone. For most people, however, the Will is foundational – a core document other estate planning documents are designed to complement. Because Wills traditionally have been worded so that the testator identifies each intended beneficiary in two ways – by name and by their relationship to the testator – LGBTQ+ couples who have particular concerns about how the legalities of marriage may unfold in the coming years or decades may wish to take special care to work with an estate planning attorney to develop language that unambiguously identifies each individual (including partners) who should receive a portion of the estate.
Naming Your Beneficiaries
The same basic principle applies if you are a cisman or a transwoman and concerned about the legal paternity of children you share with your partner, or if you are a stepparent who wants to make sure your stepchildren are treated equally with your biological children. As a practical matter, in fact, it bears emphasizing that many of the estate planning questions LGBTQ+ couples ask have answers that come back to sound estate planning practices for anyone who especially wants to make sure that their own plans, and not a state-mandated set of “default” procedures, will be carried out in their final moments and after they have said their last goodbyes.
For individuals who are perhaps less attuned to the potential risks of a laissez-faire approach to estate planning, the overdetermination of each provision can sometimes seem like excess – but estate planning is, after all, the branch of law that elevates “just in case” to something of an art form. Never be afraid to apply the care and precision your estate plan – and your relationship – deserves.
Work With a Florida Estate Planning Lawyer
Estate planning questions for many people center on how best to streamline probate proceedings for their loved ones, or how to protect specific assets from creditors. The reality, however, is that in many cases, more basic questions may need to be addressed first, before these more sophisticated strategies can function as intended. Individuals in historically marginalized relationships, including LGBTQ+ couples, tend to be more alert to the importance of nailing essentials such as developing clear and explicit designations that avoid relying on state laws to determine degrees of kinship – to decide, in other words, which of your personal connections will also be recognized as legal ones. Recognizing your priorities is the first step to securing them, so schedule a consultation with an estate planning attorney from Loughlin Law, P.A. to take the next step today. Call 561-559-6214 to book your appointment.
