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Your ability to create a plan for your last affairs is vital for nearly everyone, even for those in the LGBTQ+ community, regardless of whether you’re single or in a partnership. This is particularly true for same gender loving couples since failing to create an estate plan within the LGBTQ Community often leads to detrimental results where an estranged family member could inherit from their estate. Unfortunately, LGBTQ+ adults are twice as likely as non-LGBTQ+ adults to report being distant from their immediate family. If someone fails to estate plan, the state’s intestate succession laws dictate how the estate will be distributed, prioritizing immediate family members. The state government’s estate plan may not align with your wishes and desires, so it’s vital that members of the LGBTQ Community exercise their right to self-autonomy and determination, and create your own estate plan while you have the mental capacity to do so.
In June 2015, The United States Supreme Court ruled in Obergefell v. Hodges that same-sex married couples are entitled to equal protection under the laws and that marriages must be recognized in all 50 states. Although this ruling allows for spousal rights for all married couples, regardless of their sexual orientation, it is still important to solidify your wishes in a comprehensive estate plan. With proper estate planning, individuals can make important determinations regarding their financial and medical decisions, in case of incapacity or incompetency, as well as, determine where your assets will go upon death.
For LGBTQ individuals, chosen families are vital, providing mutual support and love that might be lacking from their birth families. Many members of the LGBTQ community often face ostracization and rejection from their birth families due to a lack of understanding and support of their identity. For same-gender loving individuals, estate planning to provide for members of your chosen-family is critical in order to avoid the intestate succession process.
For domestic partnerships, ensuring your partner has a secure place to live is crucial. For example, if only one partner owns the home and passes away, the surviving partner, not being an owner of record, could be at risk of losing the home to the deceased partner's next-of-kin. This might go against the deceased partner's wishes. Proper estate planning is essential to prevent such displacement and protect the surviving partner in this common scenario.
Whether a married couple is same gender loving or not, they can still proactively plan for their future. Despite the legal recognition of marriage, couples need to take charge of their estate planning requirements. All married couples should have the following estate planning documents:
● Living Will or Advance Directive: legally outlines your end-of-life wishes in the event of terminal illness or persistent vegetative state. It also allows you to specify medical decisions if you cannot communicate. Particularly crucial for LGBTQ individuals who identify as transgender, gender-expansive, or gender non-conforming, it enables them to align treatment and care with their gender identity. It's imperative to document your wishes while mentally capable, especially if experiencing cognitive decline.
● Health Care Power of Attorney: a healthcare power of attorney authorizes a healthcare agent to make medical decisions when you cannot. It also enables you to designate a spouse or chosen family member to handle your remains after death. Given their understanding of your wishes, they may be better suited for this role than your birth family. Choosing the right healthcare agent is critical for ensuring your wishes are honored when you cannot communicate.
● Durable Financial Power of Attorney: A durable financial power of attorney is a legal document that designates a person to make your financial decisions and handle your financial affairs, if you become incapacitated, incompetent, or otherwise unable to make these decisions on your own behalf. Again, this is an important document which allows you to name a spouse or chosen family member to make important decisions for you. You should be careful to name alternatives to make these important decisions should something happen to both you and your spouse.
● HIPPA release authorization: This document is critical to empowering your healthcare agent to make decisions about your medical treatment and care. Without it, they lack the authority to access vital healthcare information, including treatment details, payment, and facility records. Before marriage equality, many domestic partners in same-gender relationships faced heartbreaking situations where they were excluded from their partner's bedside and decision-making. Even with legal changes for married couples, those in domestic partnerships still face these challenges without a healthcare power of attorney and HIPAA release authorization.
It’s important to note that these documents are extremely important if something happens to both you and your spouse. Every adult should legally document their wishes and desires regarding their health care and financial decisions, naming individuals whom they trust to make such important decisions on their behalf. This is especially true if you are estranged from your birth family and wish to prevent them from making decisions on your behalf.
About Crystal M. Richardson
Crystal M. Richardson (she/her) is a North Carolina estate planning and administration attorney at The Law Office of Crystal M. Richardson PLLC. She is a graduate of the University of North Carolina at Charlotte, where she received her Bachelor of Arts degree in French and Political Science. She is also a graduate of the Charlotte School of Law, where she graduated with pro bono honors. She enjoys serving on many boards for non-profit organizations and being a prominent advocate in her community. For more information, please visit her website at www.CrystalRichardsonLaw.com
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