Estate Planning for LGBT Couples

Though same-sex marriage is accepted law, there are still concerns unique to the LGBT community. Historical prejudice and existing hostility both political and familial adds a layer of complication other couples need not address.

LGBT Estate Planning Checklist:

Without an Estate Plan it may mean your wishes are ignored and your estate could go to an unintended benficiary. If you are in an LGBT relationship, make sure your wishes are respected. This LGBT Estate Planning Checklist is designed to present ideas. Your Estate Plan should be crafted to address your own, unique circumstance.

  • Have a Will or Living Trust Drafted Because If You Have No Will, You Have No Say: If you die without a Will or Living Trust, your assets are divided up under the Washington’s Rules of Intestacy and uniformly ignore unmarried couples. If you are an unmarried LGBT person, you are free to leave your assets to whomever you wish. You are also free to set up specialized protective trusts for loved ones, such as a Revocable Living Trust, IRA Trust, or Education Trusts. Make sure your things end up with the people or person you want, not whomever the state rules dictate.
  • Complete a Living Will/Health Care Power of Attorney: If you become ill, incapacitated or disabled and cannot communicate your wisheswith your doctor, whom do you trust to decide what treatment you receive, select the best physician and, if necessary, authorize the doctor to stop giving you medical care? Without a Living Will or Health Care Power of Attorney, the person who will step in for you will be determined by the hospital or, if necessary, the court. If you have an LGBT significant other whom you trust to make these decisions, you can name him or her your Surrogate, removing the conflict and guesswork.
  • Funeral Directives; Avoiding Funeral Conflicts: In your Will, you have the power to appoint the person or persons who control your funeral’s details. The tool for making these appointments is a Funeral Directive. Such details include planning the memorial services and selecting the burial location. If you fail to nominate a person, the responsibility falls to your relatives or personal reprentative. If you are in a long-standing LGBT relationship you may wish your significant other to handle these details, while family members might try to exclude your significant other. Avoid potential conflicts by appointing in your Will the right person or persons to hold this responsibility.
  • Tax Planning: If you plan to leave your LGBT significant other an inheritance, consulting with an Estate Planning Attorney might result in significant tax savings.
  • Trusts to Protect Your Significant Other: If at your death you leave assets outright to your LGBT Partner, those assets are available to his or her creditors, future spouses and subject to additional taxes at your Partner’s death. Instead, your Estate Planning Attorney can craft a protective Irrevocable Trust to hold the asset for your Partner sheltered from creditors, future spouses and which will help avoid future inheritance taxes.
  • Guardianship for Minor Children: If a member of a long-term LGBT relationship has custody of a child and wishes to name the other Partner Guardian, document this intent in a Will with an Nomination of Guardian article. The custodial parent needs document clearly the surviving Partner’s nomination and either in the Will or in a separate writing the reasons for the nomination and why the Partner is the best choice.

Frequently Asked Questions:

  • Do my Partner and I need a Will or Estate Plan?
    • Failing to create your Estate Plan means Washington’s intestate succession laws kick in and creates your Estate Plan. The State’s plan might exclude our Partner if you are ever ill or incapacitated. Though the law is developing, the defaults rules still favor blood relatives over Partners. Your wishes can easily be ignored. Creating an Estate Plan allows you to include your Partner in financial and medical decisions. All states recognize that you are free to pick your Financial Power of Attorney and Medical Power of Attorney. These people need not be blood family. So, if you select your Partner as your Agent or Surrogate, they serve as your fiduciary no matter what your family might desire.
  • If I have no Will at my death, will my property pass to my Partner?
    • The answer to this question depends largely upon two factors; your state of residence and how your property is titled.
    • If you own property jointly or if you have named your Partner as a beneficiary, then that asset passes to your Partner. But, it passes without creditor protection. You could instead set up a protective Irrevocable Trust allowing your Partner to use and spend the assets, but sheltering the property from your Partner’s future creditors and spouses.
    • If you die without a Will owning assets in your name alone, without designations, your assets are divided using the Rules of Intestacy. These rules ignore your wishes and ignore your Partner. Unmarried Partners, LGBT or not, have no property rights under the Intestacy Rules.
  • Can I give my IRA to my Partner?
    • You can name your Partner beneficiary of your qualified plans without having to worry about him or her having to liquidate the plan. Federal law allows individuals other than spouses to be the recipient of your 401K and IRA plans in an inherited form, enabling these recipients to delay income tax recognition.
    • Naming your Partner outright as the beneficiary, however, exposes the assets of the plan to your Partner’s creditors, includes the asset in the Partner’s estate, and gives up your control over who inherits the IRA after your Partner’s death. Forming for your Partner an IRA Trust and then naming that trust beneficiary provides your Partner much more protection.
  • My Partner and I have raised my children, but only I have legal custody, how do I ensure that my Partner remains in my children’s lives If I die?
    • In the end, all decisions surrounding custody are based on the child’s best interests. But you can provide for an alternate guardian in your Will and clearly state your reasons for believing your Partner would be the appropriate guardian for your minor children. Though custody procedures vary, they will take your wishes into consideration as long as clearly stated. Our attorneys can help you craft the necessary documents to help you ensure that your Partner can stay involved in your children’s lives.

Experienced, With Reasonable Prices, We Make Estate Planning Easier.

If you have any questions about estate planning, please contact us to schedule a free consultation. At Vancouver Wills and Trusts we focus on estate law. With years of experience we will explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.