Every adult should have an estate plan but those who identify as LGBTQ+ may reap some additional rewards from being proactive with their planning. Unfortunately, some LGBTQ+ individuals face challenges, including difficult family relationships and discrimination, that may cause concerns if they become incapacitated or die. In addition, while same-sex marriage is legal in the U.S., according to the U.S. Census Bureau, only 58% of couples in same-sex households are married. Unmarried couples do not have the same rights as married couples when it comes to inheritance rights or the ability to make decisions for each other. Therefore, a comprehensive estate plan with the proper legal documentation in place can help avoid future problems and ensure your wishes are respected and upheld. The following are several key areas to consider.
Health Care Decisions
If you are unable to make health care decisions on your own, then you want to designate someone you trust to make those important decisions for you. This individual should be someone who will respect and honor your health care wishes. Unfortunately, if you are single with no adult children or life partner, then finding an appropriate agent may be more challenging and even more important, especially if family members or former friends are not supportive of your sexual orientation or gender identity.
The best way to ensure your wishes are carried out properly is to execute a Health Care Proxy and Living Will. Unless you place limitations on your health care agent’s authority, your agent has the authority to make any health care deicisons you could have made for yourself, including end-of-life decisions to withhold or withdraw life-sustaining measures and treatment.
In addition, you may also want to execute other advanced care directives such as a Do Not Resuscitate Order and Medical Orders for Life-Sustaining Treatment depending on your health situation. These particular directives should be discussed with your health care provider.
Financial and Legal Decisions
If you are unable to make financial or legal decisions on your own, then you want to designate someone in a Power of Attorney to manage these affairs on your behalf. The individual you choose should be trustworthy and willing and capable of handling responsibilities such as paying your bills and taxes, applying for government benefits, managing your assets, speaking with financial institutions, etc. Keep in mind that if you have a life partner, your partner does not automatically have the ability to handle these matters; the same goes for married couples as well, which many people do not realize. Therefore, it is imperative to have a Power of Attorney in place to ensure the correct people are in charge of these affairs in the event of your incapacity. Otherwise, a guardianship proceeding in court may be required to appoint a legal guardian over you and your affairs.
Inheritance Issues Upon Death & Use of Living Trusts
It’s also quite important for you to have a Last Will and Testament and possibly a living trust that sets forth how your assets are to be distributed upon your death. Assets that pass under a Last Will and Testament require a probate proceeding in Surrogate’s Court, whereas assets passing under a living trust avoid any court involvement. A living trust should be heavily considered as part of your estate plan to avoid probate, keep your estate private, and reduce the chances of your family members contesting your estate.
In absence of these documents, your assets may be distributed according to New York State intestacy laws. It is important to note that the intestacy laws do not take life partners into consideration. Therefore, if you aren’t married and have no children, your property may default to your parents, if they are alive, or if not, then to your siblings, and so on as provided by statute. This is true regardless of how these individuals treated you while you were alive. Your property will not pass to your partner as you may have desired. As a result of a lack of planning, your assets may not be distributed in accordance with your true wishes.
Children and Parental Rights
If you have or your partner has children, then you want to ensure there are appropriate legal documents in place protecting not only your rights but the rights of your children. This may include adoption papers, a surrogacy agreement, a will naming a trusted individual as guardian, and other documents as needed. These are necessary to protect the rights of a non-biological/non-adoptive parent and to help ensure a trusted individual will care for your children or your partner’s children in the event of incapacity or death.
Without properly executed legal documents in place, decision-making power and your assets can end up in the wrong hands, which could wreak havoc on those you love. Don’t wait to execute an estate plan. Take control of what happens to you, your property, and your loved ones.
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