As a member of the LGBTQIA community in Utah, you may have questions about estate planning as it affects you. With considerable experience in estate planning and an understanding of family law as it affects any partners, Pearson Butler can provide the guidance you need. Continue reading to review frequently asked questions about estate planning and the LGBTQIA community.
For more information and guidance from a seasoned Utah estate planning attorney, call (800) 265-2314 or contact Pearson Butler online.
Q: If I’m married, do I need to plan?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.
Q: Can my spouse or partner handle my financial affairs if I am incapacitated?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.
Q: Can my spouse or partner make medical decisions for me if I’m sick?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.
Q: How can I be sure that I will be allowed to visit my spouse or partner in the hospital or assisted living facility?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.
Q: Can I make decisions about my spouse or partner’s remains?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.
Q: Will my spouse or partner be appointed guardian of my minor child?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.
Q: Is there a tax if I give some of my property to my spouse or partner?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.
Q: Are my estate planning documents a matter of public record?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.
Q: Do unmarried couples have to plan more than married couples do?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.
Q: Is a living trust a good idea?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.