Estate and Advance Care Planning for LGBTQ+ Individuals

Updated

Planning for your old age and death is an easy thing to forget and leave by the wayside. However, it can be among the most important things you can do for your loved ones and your legacy. 

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LGBTQ+ individuals previously relied on a collection of directives and instructions to circumvent outdated rules. These particular rules alienated long-term partners and gave undue preference to often-estranged family members. In recent years, the legalization of same-sex marriage in the United States helped to resolve many of those disparities.  

While same-sex marriage puts LGBTQ+ individuals on equal footing for many estate planning and advance care planning issues, unique concerns and the need for proactive planning remain.  


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Why Is Estate Planning and Advance Care Planning for LGBTQ+ Individuals and Couples Important?

LGBTQ+ individuals and couples have felt the pain and tragedy of public denial and even condemnation of their most important relationship. Though same-sex marriage was only recently recognized in the United States, the fact remains that estate planning and advance care planning is crucial.

It can improve the quality of life and smooth estate administration for anyone, regardless of sexual orientation or identity. It can also tackle some concerns particular to the LGBTQ+ community.

That right to marriage resolved many estate planning roadblocks, but those who entered civil unions or domestic partnerships before 2015 still have unique issues to consider. Additionally, if you haven’t married your partner, you’ll need to take steps to include them in your estate plan. 

Given the conservative-leaning majority of the Supreme Court, some feel that its previous recognition of same-sex marriage stands on rocky ground. Nevertheless, knowing your options even in the worst-case scenario can help relieve some anxiety.

No matter what their marital status is, LGBTQ+ individuals often need to address their healthcare concerns and gender identity preferences to protect themselves should they become unable to speak for themselves.

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Estate Planning Considerations for LGBTQ+ Individuals or Couples

Many heterosexual couples can adopt a laissez-faire attitude toward estate planning, largely because their family dynamics are accepted by their family members and society at large. Unfortunately, same-sex couples and individuals can lack this essential support and come up against some fierce pushback. Rather than relying on inclusive behavior from family members, you can use estate planning to ensure your wishes are followed.  

Administering someone’s estate after they die can stir up resentments and disagreements, regardless of sexual orientation or gender identity – and sometimes in the families you’d least expect. However, those who face a lack of acceptance, condemnation, or denial from family members can expect even more challenges when dealing with estate administration. 

As a result, LGBTQ+ individuals can prepare for any circumstance through a solid estate plan. While the same laws now apply to same-sex and heterosexual marriages, LGBTQ+ people still have some additional considerations to safeguard. 

Considerations for everyone

Your estate plan determines the future of your assets after your death. You can roughly divide your belongings into two categories – probate and non-probate assets. 

Your probate estate encompasses everything you didn’t set up to transfer automatically at your death. It either passes according to the terms of your will or, if you have no will, by intestacy laws

Consider whether you’re comfortable passing your estate along to heirs through your state’s intestacy laws. A will can make it easier for your personal representative to be appointed and take care of your estate.

Alternatively, your non-probate estate consists of all the assets you placed in a trust, set up with a payable-on-death beneficiary, or otherwise established an automatic transfer.

While considering your beneficiary designations, check that they are up to date. When married couples divorce, these designations usually automatically terminate. You might have one of these old designations somewhere in your accounts because same-sex couples couldn’t marry – or divorce – until 2015.

Considerations for single people

Single people sometimes find it more challenging to make estate plans because their heirs might not be as apparent. Additionally, younger single people might not have had time to acquire many assets. 

Under the laws of intestacy, a single person's assets with no children pass to their parents. However, if their parents have passed, then their siblings inherit. The court usually appoints parents or siblings as the personal representative as well.

You might be surprised by your assets, even if it doesn’t feel like much. Many employers offer small life insurance policies as an employee perk, and even without that, your belongings still make up your probate estate. That includes things like your clothes, car, and electronics. 

Many single people choose to leave their assets to organizations or charities that they care about. And, regardless of assets, you can use your will to name someone you trust to administer your estate and handle your funeral and remains.

Considerations for transgender or nonbinary people

Intestacy laws and wills work the same regardless of gender identity. However, you might want to take on some extra planning to ensure that your funeral or memorial service reflects your preferences. 

You can purchase a prepaid funeral plan with a funeral home to make complete arrangements. That allows you to select and control all aspects of your service, including who speaks, music played, readings, and any ceremonies observed. 

Additionally, depending on your area, you might find funeral homes that are inclusive and describe themselves as LGBTQ+ friendly. Shopping around for funeral homes to find one that will honor your wishes can be especially important.

If your options are limited, you may want to come prepared to ask essential questions such as whether they guarantee to provide the services you select and whether you can bring in an outside master of ceremonies. For example, in some states, the funeral director issues the death certificate and submits obituary information to newspapers and online. As a result, their influence over your legacy can be far-reaching.

Ultimately, nominating a personal representative you trust – and who is assertive – in your will can be your best protection against those who would prefer to change your narrative.   

Considerations for unmarried couples

Unmarried couples benefit the most from estate planning because the laws of intestacy only recognize biological and legal relationships. Without some type of estate planning, your partner cannot access your accounts or property and has no right to inherit from you. 

You can completely circumvent the laws of intestacy by making a will and allocating a portion – or even all – of your estate to your partner or another beneficiary. You could also accomplish this by establishing a trust or by naming your partner as a beneficiary of your assets. 

Typically, bank accounts, investment accounts, and retirement accounts all allow you to designate a payable-on-death beneficiary for the account. Anything in the account passes outside of probate and directly to the beneficiary if you do that.

Considerations for married couples

Under the laws of intestacy, your surviving spouse can typically inherit at least a portion of your estate. However, it might not be the entire estate depending on your state. Instead, your parents, siblings, or children could receive a significant share. 

Just as with unmarried people, creating a will or using other forms of estate planning can help you avoid the default proceedings of the intestacy laws. Nominating your spouse in your will to be your personal representative and directly bequeathing your estate to them can provide stability regardless of any future changes to same-sex marriage laws. 

Considerations for people with dependent children

Anyone with dependent children can face some critical decisions when making an estate plan. Besides planning financial support for your children, you’ll also need to think about who you want to care for them if you pass away. 

LGBTQ+ families often find the nomination of a guardian for their children especially important. Choosing a guardian ahead of time can prevent them from ending up with family members that didn’t support or recognize family structure or gender identity.

When the court appoints a guardian for a minor, the nominee with the highest priority is one nominated by the parent in writing. The court typically honors that nomination unless the nominee rejects the appointment or the court finds they are an unsafe option. Nominating a guardian in your will or other writing also fast-tracks the judicial appointment of a guardian in most states. Your chosen guardian only has to apply to the court to confirm the appointment. 

Parents typically plan for the worst-case scenario of both parents passing at the same time or soon after each other. In many cases, LGBTQ+ couples experience the added burden of ensuring that the other partner can care for their shared child when only one parent is the legal or biological parent. Of course, legal adoption is the gold standard because it adds the other parent to the birth certificate. Still, the process can be lengthy, or families might have other reasons for not pursuing adoption.

The legal or biological parent can again use the nomination of a guardian in the will to address this concern and ensure that the children stay with their other parent. 

Estate Planning Checklist for LGTQ+ Individuals or Couples

Everyone’s estate plan looks a little different, depending on which combination of documents you decide on. Most estate planning documents can be highly customized. It’s not uncommon for your will to encompass many topics, not just the disbursement of assets.

Regardless of which combination you choose, keep copies with other trusted people such as an estate lawyer, in addition to someplace safe. It is also crucial to let your loved ones know how to find them at your death.


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Advance Care Planning Considerations for LGBTQ+ Individuals or Couples

Advance care planning addresses care needs and preferences as we age or otherwise develop any disabilities that cause incapacity. It ensures that care providers and others follow your treatment wishes. Crucially, it also protects your partner’s rights to see you and make difficult decisions on your behalf, even if you aren’t legally married. Essentially, advance care documents express your wishes when you can’t speak for yourself. 

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Considerations for everyone

Advance care plans address as many potential situations, so thorough advanced care plans can be very complex. Unfortunately, no one can predict every accident, disease, and illness, so advance care plans also include the designation of a trusted person to make decisions for you. 

At their most basic, advance care plans address your preferences regarding medical intervention. The more information you provide in your documents, the more likely it is that your doctors and loved ones can make choices that are true to who you are. 

Your nominated decision-maker uses the guidance you set out in your documents to work with your care team to take care of you. 

Considerations for single people

It’s not uncommon for people to change their advance care plans throughout their lives as they enter new seasons of life and experience significant life changes. A single person’s or younger person’s concerns can vary significantly from that of an older person or someone with children. 

First, it’s never too late to plan for the unexpected. Accidents can befall us at any time, making it important to designate a decision-maker and give thought to what you want your life and care to look like – even if you’re young and healthy right now. For LGBTQ+ individuals, it might be important to make it clear in your documents who you don’t want to trust with your care. However, be sure to provide feasible alternatives rather than simply listing everyone you don’t want to have involved in your care.

Considerations for transgender or nonbinary people

Transgender people may have complex and ongoing medical needs to support their transition. Include your medication regimen and anything you need to maintain your transition in your living will or another planning document. You can also include your pronoun and name preferences so that medical staff know how to address you.

Considerations for unmarried couples

Unmarried couples often benefit from advance care planning, much as with estate planning. Without recognition and directions in your advanced care directives, your partner likely has no decision-making authority or even a right to visit you. 

When caring for a patient who cannot communicate and who does not have advanced directives, hospitals typically follow a traditional family tree hierarchy to determine a medical proxy as an emergency medical contact and decision-maker. That person, perhaps a parent or sibling, could exclude your partner from your bedside and discount any thoughts they have about your care. 

You can mitigate this by nominating your partner as your medical decision-maker or by nominating someone you trust to respect your relationship. You can additionally note who does and does not have your permission to visit you in the hospital or other medical facility. 

If you and your partner live together or otherwise share finances, consider how you want to address the access to funds to support the household. For example, think about how to share the information your partner will need to pay bills or how they’ll access the funds you typically contribute each month. 

Considerations for married couples

While hospitals typically defer to the spouse when the patient lacks medical directives, formalizing your spouse’s decision-making ability can prevent more significant conflict between them and other family members. One such difficult example is the case of Terri Schiavo in the 1990s. Her husband decided to terminate life support, which initiated a years-long court battle between him and her parents.

Alternatively, your spouse might have care needs of their own. If you’re serving as the guardian or power of attorney for your spouse, don’t forget to nominate someone to succeed you. 

Considerations for people with dependent children

Parents of dependent children face the additional burden of planning for their child’s care if they become unable to care for them themselves. Just as you would nominate a guardian in case of your death, so should you nominate one for temporary or permanent incapacity. 

Whether you nominate the same person for permanent or temporary guardianship is up to you. For example, for temporary needs, you might nominate a close friend who lives in your child’s school district to help them maintain their routine. But, of course, a challenge is deciphering what situations are temporary and whether those temporary conditions become permanent. 

And, as with estate planning, you might need to address your partner’s ability to care for your children if they are not a legal or biological parent in their own right. 

Advance Care Planning Checklist for LGBTQ+ Individuals or Couples

A thorough advance care plan can include many documents that tackle various subjects, such as the following: 

  • Your medical decisions and preferences
  • The nomination of someone to act on your behalf
  • Plans for children and pets
  • Access to your essential documents and information. 

As you create your portfolio of documents, make a plan to keep them accessible to those who will need them if you have a medical event. 

Medical documents

  1. Power of attorney: A power of attorney allocates decision-making authority to another person. It can be for health or financial decisions, or both. You can indicate that it only takes effect if you become incapacitated. If you want it to be effective even after you are incapacitated, be sure to create a durable power of attorney.
  2. Living will: A living will – also called an advanced care directive – details your instructions for the type of healthcare you want to receive if you cannot communicate with your doctors. This document typically describes wishes regarding life support and other life-sustaining measures and the types of interventions you consent to. Many people also describe what they want their final moments to be like and whether they want any religious personnel at their bedside.
  3. DNR order: You might include do not resuscitate instructions in your living will or in a separate document. Many states provide specific documents for this designation.
  4. Guardian nomination: If you lose the ability to communicate and make decisions for yourself effectively, the court can appoint a legal guardian. During the appointment process, the court considers the priority of appointment of available candidates, and anyone nominated by you in writing has the highest priority. 
  5. Organ donation: Your documents should indicate whether you consent to organ donation. Many states have specific forms you can use, and you can also add this to your living will.
  6. Medical information: Improve your chances of getting the care you want by making it easy for the care team and power of attorney to know your current condition. Include information regarding any diagnoses you have and any medications and treatments you are undergoing.

Financial documents

  1. Power of attorney: A durable power of attorney remains effective even after losing your decision-making ability. Your power of attorney could pay bills on your behalf, including for essential medical services and long-term care or rehabilitation.
  2. Conservator nomination: As a step up from a power of attorney, the court can appoint a conservator to manage your finances. Some states call this position a guardian of the estate. Even if you designate a power of attorney, someone might need to pursue conservatorship if your power of attorney becomes unable to act on your behalf or they need additional authority.
  3. Asset and debt information: Help your power of attorney or conservator act efficiently for you by creating a list of your accounts, properties, and liabilities. 
  4. Long-term care insurance: Consider investing in long-term care insurance while you’re healthy. Long-term care insurance can help you maintain a higher quality of life than government-paid care. You’ll typically have more options for facilities and treatments, nicer facilities, and fewer restrictions.

Documents for dependents and pets

  1. Nomination of guardian and conservator:  Designate the person or people you want to care for your children if you become incapacitated. You can also nominate someone to manage your child’s money or property if they have any. This can be especially important if you have concerns about your children living with family members who might appear to outsiders to be good candidates. Talk to your nominee ahead of time about their ability to raise your children and whether they share your parenting values.
  2. Pet care and support: Be sure to indicate who you want to take care of your pets if you become unable. You can also direct your financial power of attorney or conservator to provide financial assistance to whoever cares for your pets during your life.

Frequently Asked Questions: Estate and Advance Care Planning for LGBTQ+ Individuals or Couples

Estate and advance care planning can be challenging topics even for those with simple medical, financial, and family situations. If you have deep concerns surrounding your future care or your estate, it can be helpful to work with an attorney to best plan for any scenario. 

Can you make sure your sexual orientation, gender identity, or name is respected after you die?

While you cannot control the thoughts and actions of most individuals, you can take a significant step in ensuring your wishes are followed by nominating a reliable and trustworthy personal representative in your will. Select someone who can stand up to any family members who challenge them.

Your personal representative administers your estate after you die, and you can also leave the funeral and other instructions in your will. By explicitly addressing your wishes regarding your name, gender identity, and sexual orientation in your will, you provide direction to your personal representative. They can then use their authority as your personal representative to make funeral arrangements or decisions about your remains, even if your family members disagree. 

Additionally, consider pre-arranging your funeral plans. You can vet locations to hold your services to find one that will respect your preferences. Most offer the option to lock in all the details of your service by prepaying, which would prevent anyone from changing the content of your funeral. 

Finally, make arrangements for your headstone or memorial if you want to be buried or have your ashes stored at a cemetery. If you’ve legally changed your name, there shouldn’t be any problems. However, if the name you want on your marker isn’t the same as on your death certificate, you should check with the cemetery’s policies. Most are privately owned and make their own rules and regulations and wouldn’t be concerned with an alternate name. However, religious burial sites might prohibit using any name other than that on your death certificate. 

How do you find an LGBTQ+-friendly estate planning attorney?

Many attorneys specializing in LGBTQ+ issues make that a selling point for choosing their firm. So, if you find an attorney you’re interested in, start by checking their website for any reference to expertise in LGBTQ+ concerns.

Alternatively, if you’re starting your search from scratch, check the LGBTQ+ section of your state’s bar association. They usually offer a find-an-attorney tool to help you locate one of their members who practice in your geographic and legal topic area. Attorneys who join an LGBTQ+ bar section identify as LGBTQ+ or an ally. 

Do I still need an estate plan if my partner and I entered a civil union?

A handful of states created civil unions to closely mimic the benefits of marriage for both same and opposite-sex couples, including inheritance, emergency medical care, and other common marriage rights. Civil unions still do exist in some states, with the extent of rights conferred by the union varying by state.

If you live in a state that recognizes civil unions, you can still benefit from estate and advance care planning, just as a married couple can. In addition, you can use the planning documents further to specify your wishes and your partner’s rights. 

Rhode Island and Delaware replaced their civil union provisions with marriage provisions when those states legalized same-sex marriage in 2013.

What happens if I have had a domestic partnership?

Prior to 2015, domestic partnerships were a popular alternative to marriage where same-sex marriage was not recognized by law. Any state or city could offer domestic partnerships, and the arrangement conferred some legal benefits on the couple. However, the scope of the benefits varied based on location. 

Several states still have domestic partnership laws on the books, so those benefits remain. However, a domestic partnership did not automatically convert to marriage and does not confer the same legal rights as marriage. 

If you prefer to maintain your domestic partnership rather than enter into a marriage, update your estate plan and advance care planning documents with your locality’s restrictions on domestic partnerships in mind. Your planning might closely mirror an unmarried couple with some changes to reflect your area’s domestic partnership benefits.

Do I have to put my legal name on my gravestone?

Each cemetery sets its policies regarding names on gravestones. Most secular cemeteries allow the plot owner to choose the content of the memorial. However, cemetery records usually require your legal name when purchasing the plot. 

Protect Your LGBTQ+ Legacy with Estate and Advance Care Planning 

Many people treat their wills and other planning documents as something to set and forget. However, these documents often need to be revised or replaced over the decades as you experience significant life changes or the laws change. 

The 2015 Supreme Court ruling created new options for LGBTQ+ individuals and families, but that right could be at risk as it is not an official federal law. As state and federal laws shift over time, LGBTQ+ estate plans and medical directives must stay current to be as effective as possible. 

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