While legislation has come a long way to support LGBTQ+ individuals and families, their estates can be more vulnerable than most without a detailed estate plan in place.
7 Estate Planning Steps to Protect Yourself, Your Partner, & Your Family
Without a legal will, trust, or complete estate plan in place, estates move into the probate court’s jurisdiction, and this can undermine everything you’ve ever wanted when it comes to the well-being of your spouse/partner, children, and the distribution of your assets.
Intestate Succession vs. Solid Estate Plan
If no credible will, trust, or estate plan is in place, probate courts follow strict legal guidelines—called intestate succession—to distribute a deceased person’s assets. What the courts decide may be a far cry from what you wanted, intended, or spoke about with your loved ones.
For that reason, we recommend LGBTQ+ individuals and families begin taking these seven steps to create solid, legal estate plans that will hold up in court if family members or former partners contest them.
7 Beginning Steps To Create Your Estate Plan
Create individual advanced medical care directives
While the lion’s share of estate planning documents are designed to adhere to your decisions and wishes after you die, several critical documents are there to support your wishes in case you are incapacitated – or unable to make decisions for yourself.
The first of these documents is a bundle we call advanced directives. These documents outline:
- HIPAA permission privacy authorization forms. The Healthcare Insurance Portability and Accountability Act of 1996 makes it legally impossible for medical professionals to share your medical information with anyone who isn’t your spouse or an immediate family member (if you are incapacitated). However, you can complete privacy authorization forms that permit physicians to share your information with anyone you’ve listed.
- What you do and don’t want to be performed medically on a situational basis (when life support should/shouldn’t be used, for how long, whether you prefer not to be resuscitated, etc.).
- Who can make medical/healthcare decisions on your behalf (called a medical power of attorney or healthcare proxy)?
- Who can make legal/financial decisions on your behalf (this can be different than the person making medical decisions and is referred to as your power of POA)?
- And so on.
This is typically the first set of documents we work through with individuals and their partners/spouses. These documents make it much harder for well-meaning loved ones to make medical/clinical decisions from an emotional perspective rather than in honor of what you want.
Find an estate planning lawyer you trust
Outside of creating your advanced care directives, every other aspect of estate planning should be facilitated and guided by an experienced estate planning attorney. Asking friends, colleagues, and family members for word-of-mouth referrals is one of the best ways to find an estate lawyer you feel comfortable with and can trust.
Otherwise, we recommend taking advantage of free, no-obligation exploratory calls to get a feel for a few different attorneys so you can choose the one who feels the most comfortable for you. In most cases, you’ll come back to your estate plan repeatedly over the years to reflect the most current picture of your life, so establishing a comfortable partnership now serves you well into the future.
Guardianship for children
If you have children, guardianship plans are critical. While some of our LGBTQ+ couples have done variations of fertility treatments so children have a genetic link to each parent, most do not. This can make things exceedingly risky if something happens to the genetically related parent. If you want your children to remain with your partner, guardianship plans are a must.
Establishing legal guardianship is the only way to guarantee that your children or dependents will be raised by individuals you’ve intentionally selected to support their emotional stability and well-being. This may not be members of your family or people who everyone else agrees are the best choice, which is why your legal guardianship documents are #2 on our list of estate planning priorities for LGBTQ families.
Establish POD beneficiaries for all financial accounts
These days, almost every financial account – from checking and savings to retirement plans and investments – offers a place to add payable on death (POD) beneficiary. Among other things, this process bypasses probate courts, so it is highly recommended for anyone who doesn’t have property or significant material assets but who does have financial assets. This is one of the simplest estate planning steps to complete.
Creating POD designations, usually done online, makes things straightforward for the named beneficiaries. You can designate one or more people (using percentages to distribute the account to multiple parties). If you die, the POD beneficiaries must show proof of their identity and an original copy of the death certificate. The funds are distributed to them in alignment with the account’s parameters.
Establish a trust for properties and larger valued assets
Most estate plans include both a will and a trust. The will is a very straightforward document that says who gets what. While California probate courts typically acknowledge any will that is written and signed by the deceased (and a witness), it’s always best to have your will documented and filed by a reputable estate lawyer.
If you have properties or material assets of notable value, we encourage you to talk to an estate planning attorney about the benefits of a trust. A living trust can simplify the estate distribution process and minimize any taxes and fees associated with the estate.
Learn more about how estate plans provide tax benefits
Depending on the size of your estate and your family situation, you may be surprised to learn that an estate plan can provide multiple tax benefits today and in the future. We’ll help you set up an estate plan to minimize related taxes or associated fees so your heirs and beneficiaries optimize their distributions.
Review whether life insurance is a good move for you
While most people benefit from solid life or long-term care insurance policies, they’re not always necessary. As we work with you to create an estate plan that fits your lifestyle, we can assess which types of insurance policies – and how much – make the most sense for you.
Schedule an Estate Planning Consultation With Tsengh Law Firm
Tseng Law Firm has been supporting the long-term health and well-being of our LGBTQ+ clients and their families for more than 10 years. Please contact us to learn more about where you and your partner or family may be vulnerable in the event of an emergency so we can create a solid estate plan to protect you.
We’re happy to provide references from current clients so you can get an objective feel for how we work. It’s time to ensure your family is fully supported – and taken care of – no matter what the future holds.