LGBTQIA Estate Planning FAQs

A:Whether or not you are married, there are many important reasons to create an estate plan, such as avoiding probate, minimizing taxes and providing creditor and divorce protection for beneficiaries.

A:The only way to ensure your spouse or partner has that authority, without question, is through a clear and sound estate plan. Specifically, by designating your spouse or partner as agent under a general durable (financial) power of attorney, he or she can make decisions on your behalf regarding financial matters.

A:If you are in a marriage, registered domestic partnership, or civil union recognized by the state in which you live, your spouse or partner can make those decisions for you. If you are not in a registered relationship, or if that relationship is not recognized by your state, then state law would recognize your family of origin to make those decisions. However, you can override state law and give your spouse or partner the authority to make such decisions by signing a medical power of attorney. With such a document, when you are unable to make your own medical decisions, your spouse or partner can step in and speak for you. Further, this document will designate your spouse or partner as your choice to be guardian for you if one needs to be appointed. Without such a designation, your family of origin may have priority for such an appointment.

A:If you are married or in a state that recognizes civil unions or domestic partnerships and you register as such, proof of such registration should be sufficient. Otherwise, you would need to have your spouse or partner designate you as agent under their medical power of attorney. The agent also can limit other visitors.

A:Yes, if you are married or in a registered relationship and in a state that recognizes that relationship. However, if you’re not married or in a registered relationship, or you are in a state that does not recognize that registered relationship, then default state law allows your partner’s family of origin to make those decisions. However, if your spouse or partner designates you as agent under their medical power of attorney, then you would be able to make such decisions.

A:Unless your spouse or partner has adopted your minor children, a court would decide what would be in the child’s best interest. Typically, your family of origin and that of the child’s other biological parent are given preference by the court. However, in your will, you can nominate your spouse or partner to be the guardian for your minor child. The court will then give weight to your suggestion while determining what is in the child’s best interest.

A:Maybe. Federal law allows married couples to give each other an unlimited amount of property without gift tax during life or estate tax at death. Federal law does not recognize nonmarital relationships. However, each person gets to give up to his or her tax exclusion during their lifetime to anyone they want. But, any use during lifetime reduces the amount available for transfers at death. In addition, anyone can make a gift to any other person, called the Annual Gift Tax Exclusion, without gift tax and without reducing his or her estate tax exclusion.

A:Only your will is a matter of public record. Trusts and powers of attorney are not public. Therefore, by using a trust, you can maintain the privacy of your wishes. Prying eyes will not have access to the details of your estate plan.

A:Yes. The default in state law, called “intestacy,” is designed with married couples in mind. If a married couple dies without any estate plan, the survivor will get a good portion of the assets left behind. However, if you’ve not married, your survivor would get nothing. Instead, the family of origin of the partner who died would get anything in that partner’s name, including bank accounts, real estate, etc.

A:No matter your gender, sexual orientation, or sexual identity, a living trust may be essential to protect your estate, eliminate probate, and minimize estate taxes. It can also keep your assets and wishes private.