The Importance of Customized Estate Planning for LGBTQ+ Relationships

June is a time of celebration and reflection for the LGBTQ+ community as Pride Month shines a spotlight on the progress made in the fight for equal rights. While significant strides have been made, such as the legalization of same-gender marriage and increased recognition of LGBTQ+ families, there is still a large gap in estate planning for LGBTQ+ individuals that could leave your loved ones with a big mess.

Estate planning laws are still written for hetero, cisgender individuals, and many lawyers aren’t well equipped to customize their estate plans to account for the unique family dynamics and wishes of LGBTQ+ clients. Sadly, if you have LGBTQ+ family members or are in a non-traditional family dynamic of any kind and don’t have a custom estate plan, the people you love most could find themselves accidentally disinherited from your estate or stuck in a lengthy and expensive court battle.

To make sure your family is well-cared for no matter how the law defines you, keep reading to learn why customized estate planning is so crucial for LGBTQ+ and all non-traditional humans.

1. Care for Your Family as You Define It

The concept of family has expanded far beyond the confines of the traditional “nuclear family.” Gratefully, we now celebrate the beautiful diversity of family structures, encompassing same-gender couples, unmarried partners, civil unions, polyamorous relationships, and an array of other unique family dynamics. However, when it comes to death or incapacity, the law still lags behind, often failing to accommodate non-traditional family units in ways that you would choose.

If you die without an estate plan in place, the law will apply the state’s default estate plan to your unique situation. Under the law’s default plan, your possessions and money will pass to your next closest relatives by blood or marriage. If you aren’t legally married to your partner or partners, the people you love will be automatically disinherited in the event of your death.

Likewise, if you have children that are unrelated to you genetically who you haven’t formally adopted, like an unmarried partner’s child or stepchild, those children will not receive anything from your estate after you die. Even if you’re married to the child’s parent, the law does not treat a stepchild as a direct descendant and therefore doesn’t provide for them in the same manner.

To make sure the people you love — your chosen family – are taken care of, no matter how the law labels your family, it’s important to create a custom estate plan that ensures your assets are distributed according to your wishes and that your partners, children, and chosen family members are protected and cared for if something happens to you, even if may not be recognized under default inheritance laws.

2. Protect Your Financial and Health Care Rights

If you ever wondered who would take care of you and your things if you become ill or incapacitated, your first thought is probably your partner. Right? After all, it seems like common sense that your partner of ten years (or 2 years, or 5 years, or 20!) should be the one to make healthcare decisions for you or pay your bills.

But unfortunately, the law doesn’t operate based on what might seem like common sense when we look at our everyday lives and relationships. The law doesn’t assume that you’d want any particular person making decisions for you if you become incapacitated. Instead, your family members will need to go through a stressful court guardianship procedure to be granted decision-making power by a judge.

If your family members can’t come to an agreement on who should be your decision-maker, the court may assign a professional guardian – a complete stranger – to make decisions for you instead!

To avoid court involvement altogether, it’s vital to name your chosen decision-makers – your Powers of Attorney – long in advance of ever needing them. This is especially important if you want to choose a decision-maker who isn’t related to you by blood or if you want to make sure that any certain lifestyle choices or beliefs such as a special diet, style of dress, or hormone therapy are still carried out if you’re incapacitated.

If you don’t put these wishes on paper and name someone you trust to uphold them, it’s likely a judge won’t appoint your chosen decision-maker. In this case, the person the judge chooses can make whatever decisions for you they feel is best, even if that means ignoring your chosen gender expression or identity.

No one expects to become incapacitated due to an illness or injury, but sadly, it happens. Legally naming a decision maker in advance and talking about your wishes with them and your extended family helps safeguard your rights and ensures that your wishes for how you are cared for are honored while avoiding family conflict as much as possible.

3. Most Traditional Lawyers Aren’t Well Equipped to Serve LGBTQ+ Families

Although same-gender and LGBTQ+ relationships are more publicly recognized now than ever, creating effective estate plans for LGBTQ+ clients is still new territory for many traditional lawyers.

Some lawyers simply lack experience serving LGBTQ+ families because these families didn’t have the same rights as cisgender couples until just eight years ago – and while that’s nearly a decade, it’s only a fraction of most lawyers’ practicing careers. For traditional lawyers who are in their 30th year of practice, new developments in LGBTQ+ planning are still fairly foreign.

The same is true for many LGBTQ+ families. In addition to same-gender marriage being relatively new, many LGBTQ+ families haven’t pursued estate planning due to a lack of knowledge about its importance or its availability to them. After all, only 30% of American adults have an estate plan, (yikes!), and only a small portion of that 30% are in a LGBTQ+ relationship.

For lawyers who create cookie-cutter plans for their clients (which is more lawyers than you’d like to think), the amount of custom estate planning language necessary to make an effective plan for an LGBTQ+ family is more than many lawyers know how to do or want to do.

That leaves a shocking number of traditional attorneys who simply aren’t prepared or experienced enough to serve LGBTQ+ families in a way that creates effective plans and also honors their family and their legacy.

Sadly, some traditional lawyers don’t feel comfortable serving LGBTQ+ families and don’t even accept them as clients!

Because of this, it’s crucial to work with an attorney who isn’t just comfortable working with LGBTQ+ families, but is passionate about getting to know your family on a personal level and creating a plan that celebrates all that you’ve done and all that you hope for your family in the future.

4. Keep Your Kids with the Ones They Love

If you’re in an LGBTQ+ relationship, you know that family isn’t just about bloodlines – it’s also about your chosen family and the bond and love you share for each other.

And if you have children, you know that ensuring their well-being and protection is of the utmost importance.

In the event that something happens to you, it’s crucial to have a plan in place that addresses who will be your children’s legal guardian, and this is especially true if the children in your family aren’t biologically related to one of the parents, such as step-children or children born to same-sex parents who aren’t married.

Not only can these situations create some unique legal planning, but LGBTQ+ parents may also face resistance from family members who may not support children living with a biologically unrelated guardian or an LGBTQ+ guardian, whether you and your partner were married or not.

Similarly, if your family is resistant to certain lifestyle or parenting choices you have made – such as gender fluidity in how you raise your child or the topics you discuss within your family – it’s incredibly important to name guardians who align with your beliefs and who will honor your wishes for how you want your children to be raised.

Legal Guardians Are Even More Important for LGBTQ+ Families

To avoid potential disputes and ensure the continuity of care for your children, it’s essential to designate legal guardians for your children explicitly in your estate plan. By doing so, you can legally establish who you want to care for your children in your absence regardless of the guardian’s relationship to your children or their sexual orientation.

By documenting who you would want to raise your children clearly and legally, you help ensure that your children will always be raised by the people you choose and the people your children love.

Otherwise, you leave space for relatives who do not agree with your beliefs to try to take over the position of guardian and raise your children in a way you would not agree with – possibly even keeping them away from the other parent figures in their life.

Work With a Lawyer Who Understands You

Protecting your family and your wishes as an LGBTQ+ individual requires the guidance and expertise of a lawyer who understands your unique circumstances and desires for your family. That’s where we come in.

While the law may still fall short in accommodating the diverse family structures and dynamics that exist today, we understand that every family is different, and we know how to craft a custom plan that not only protects your loved ones and ensures your wishes are honored, but also embodies the values, beliefs, and stories that make your family unique.

If you want to make sure your LGBTQ+ family will be cared for and supported no matter what the future holds, schedule a free 15-minute discovery call at this link to learn more about how I serve LGBTQ+ families differently than other lawyers.