Most people, regardless of their gender identity or sexual orientation, should make an estate plan. However, same-sex couples/families and LGBTQ individuals may have more to gain from making an estate plan than others because of the ever-changing nature of the laws surrounding LGBTQ issues. An estate plan can also help clarify the nature their relationship for those family members or professionals who may not (sadly) understand it or approve of it.
An Estate Plan Addresses Important Legal Issues: State and federal laws affect how couples own property together, who gets which assets when one member of a couple dies, how taxes are calculated and paid, and who has the right to make health care decisions if one member of the couple becomes incapacitated. Generally, laws protect spouses in all these situations. For examples, spouses have a right to visit each other in the hospital, and to inherit from one another. They get tax breaks as well. But because same-sex couples cannot marry in most states, they are denied these benefits. They need to create estate planning documents that spell out their wishes and, as far as possible, make them legally binding.
6 Key Estate Planning Issues for LGBTQ Families
Same-sex couples have unique concerns when creating an estate plan. Here are six estate planning issues that same-sex couples should consider:
#1 Writing a Will
A Will is a foundational element of many estate plans. It is a simple, powerful, and relatively inexpensive document that you may be able to make yourself. With a will, you can decide:
- Who Gets Your Stuff? Determine who will inherit your assets
- Who Gets Your Kids? If you have children under age 18- you NEED a will, in order to nominate a guardian for your children
- Who Will Handle My Kids’ Money? Equally important is arranging for a responsible adult to manage any assets that you’ve set aside for your kiddos; and
- Who’s In Charge? A will nominates an executor (“Personal Representative” in Nevada) to legally handle your affairs.
You can also use your will to name a caretaker for a pet, direct how taxes should be paid, forgive debts, and more.
If you do not make a will, you will die intestate, and your property will be distributed according to Nevada’s laws of intestacy. Dying intestate almost always has an undesirable effect. This is especially true for same-sex couples because intestate succession laws rely on the legal relationships of marriage – so if you are not married, or cannot get married in your state, intestate succession laws may leave your partner with no right to your property!!!
#2: Consider Forming a Trust & Other Probate Avoidance Tips
Probate is the court process of wrapping up your estate. Probate (for more information, click here) can be a long and expensive process, and it is rarely a benefit to the estate. There are ways to avoid probate, and many estate plans focus on doing so. Avoiding probate may be more complicated for same-sex couples because, in many states, they cannot take advantage of laws that allow property to pass to spouses without probate. You can avoid pro