Estate planning is important for everyone, but maybe more so for LGBTQ+ people, especially those with families. Since 2015, marriage has been a right guaranteed to all Americans, but it is not one that feels perpetually secure. Reading through the decision in Dobbs that ended constitutional protections for abortion, it is easy to see how the Supreme Court could also decide that marriage for all is not a right that is historically rooted in America and, thus, not deserving of constitutional protection.
The unfortunate fact is that non-cis, non-hetero people in the United States live in a constant state of insecure rights. Hopefully, this will one day change, but until it does, we should take the steps available to preserve as many rights as possible for LGBTQ+ families. To that end, good estate planning can be a valuable tool.
Control Your Assets
The first thing that estate planning allows you to do is to control your assets and who gets them at your death. If you are not married, or if the courts decide that your marriage is no longer valid, having an estate plan in place will make sure your wishes are still followed. Your spouse will not have to rely on state intestacy laws to make sure they get your assets if you have a will in place. Unmarried partners have no intestacy rights at all, so an estate plan will make sure you can give your partner the assets you want them to have.
Make Your Child Secure
Another issue that many LGBTQ+ families run into is that there are children in the relationship who are not the biological children of one of the partners. This creates several potential issues. First, if you pass away and your child is not biologically yours or adopted legally, that child will have no inheritance rights under state law.
Even worse, if you are the biological parent and your partner has not adopted the child, the child may be pulled out of the home and placed with other family members, and not necessarily the family members you would prefer. Judges tend to have a lot of leeway in child custody determinations, and the sad truth is that plenty of NC judges would consider a parent’s LGBTQ+ partner to be an inadequate choice for guardianship. However, if we make sure that a legal adoption is in place as part of your estate plan, we can take that choice out of the judge’s hands.
Avoid Probate
A good estate plan will help your family avoid having to traverse the lengthy and expensive probate process before getting access to your assets. Probate takes a percentage of your total asset value and holds up transfer of the assets during the process, usually around a year or more. With a good estate plan, you can pass your assets outside of the probate process and save your loved ones time and money while also shaping those inheritances in ways that may be more beneficial to your loved ones than lump sums dropped into their laps.
Plan for Incapacity
We all think it will never happen to us, at least not until we get old and gray. No one thinks we may be incapacitated in the prime of our lives. However, whether due to car accidents, workplace accidents, strokes, or some other cause, tens of thousands of adults under 55 years old will suffer some level of incapacity each year in the United States. This incapacity could be short-term or long-term, but it will require someone else to take control of your decisions, financial and health-related, for some period of time. Again, the courts have a lot of leeway here unless you have put a plan in place that communicates your own wishes in such a circumstance.
Moreover, can you imagine being in a situation where your partner is in critical condition, but you are not even allowed in the hospital room? If you are not married, or if that marriage is invalidated, this is a very real possibility. The right to decide who can and cannot be present would almost certainly fall to the family, and if the family does not like you, that creates issues. Having the right estate plan in place takes that power and puts it with the people you want to have it.
Estate Planning Benefits You and Your Family
Putting a good estate plan in place will ensure that your needs and those of your family are taken care of in the event of your death or incapacity. These are steps you can take now to hand yourself and your family peace of mind and to create through the planning process many of the rights a marriage otherwise grants but could be taken away. The right to make medical decisions, to have your partner by your side in a medical emergency, and to make sure your children are taken care of can all be handled through estate planning.
At Vita Bona Legal Services, we understand all of the problems and pitfalls that come with any type of non-traditional family structure in this country. We care deeply about making sure that all Americans have access to the same rights as cis-gender heterosexual couples, and we understand all of the steps we need to take to make that happen. We do not create a set pack of forms like many attorneys; rather, we take all of the facts and circumstances of your situation into account and create a fully individualized plan to protect your assets and rights for you and your family. Schedule a free assessment call at the link below to see how we can help your family.
https://calendly.com/vitabona/initial-assessment
This article is a service of Vita Bona Legal Services. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life & Legacy Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session.
