LGBT Estate Planning 101

Estate Planning for the LGBT Community

One of the biggest mistakes members of the LGBT Community can make is failing to properly set up an estate plan – the results of which can be devastating.

If you do not have an estate plan and rely upon just holding property in joint tenancy as your estate plan, is the equivalent to giving up control of one’s estate, as well as giving up management of one’s health, finances and well-being in times of incapacity.

The need for an estate plan is most critical in cases of an accident or illness that renders the LGBT person incapable of making medical decisions or managing his or her financial affairs. Without a proper estate plan, the partner or significant other of an LGBT person could be legally precluded from having any role in the decision-making of his or her partner’s care, management of his or her financial affairs, or even having physical access to the incapacitated partner.

Registered Domestic Partnership (RDP)

Many states, including California, offer domestic partnerships as a method of legal recognition for same-sex relationships. The rights and responsibilities of being a RDP are numerous, including community property rights between the partners. Before registering, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBT Community. That attorney can counsel you on the implications of registration and the advisability of registering based on your unique situation.

The Problems Estate Planning Solves for the LGBT Community

A LGBTQ individual or couple can avoid numerous problems through proper estate planning, which includes:

A Basic Will
Everyone, whether gay or straight, should have a basic will. But it is even more important for LGBT Community members to have a basic will because without one, the laws of intestate succession will dictate who will receive your assets when you die. And that person may not be who you want. A basic will ensures the LGBT person’s assets are distributed to whom he or she wants, when and how he or she desires.
A Revocable Living Trust
A Revocable Living Trust can establish the LGBT person’s partner as the trustee. The trustee is the manager of the person’s affairs both when the LGBT person becomes incapacitated and when they pass away. A revocable living trust also gives the LGBT person more control over who will receive their property and allows them to provide gifts to family, friends and even charitable organizations. Not everyone needs a revocable living trust, but if you have substantial assets, and own real property, a revocable living trust may be right for you. It is very important to talk to an experienced estate planning attorney who is knowledgeable about the rights and needs of the LGBT community when considering a revocable living trust.
An Advance Health Care Directive
An advance health care directive can avoid the potential problems of the LGBT person not maintaining control over his or her health care decisions and his or her partner not having access to the LGBT person during a period of incapacitation. By preparing an advance health care directive, an LGBTQ person can make sure their partner (or the person they want) is making health care decisions for them, and they can make sure the health care decisions being made are the right ones for them.
A Durable Power of Attorney
A durable power of attorney allows an LGBT person to designate who they want handling their financial affairs and property in the event that person is incapacitated. By preparing a durable power of attorney, an LGBT person will make sure their partner, or someone else they trust and rely upon, is handling the important job of managing their money. Without a durable power of attorney, someone in your family you may not trust could be declared your conservator and take control of your money. Don’t let this happen!

Proper estate planning by members of the LGBT Community will ensure their assets will go to whom they want, their estate will be managed by who they want, and in the event they are incapacitated, their medical decision and financial matters will be handled by the person they want. It is very important that every member of the LGBT community, whether registered domestic partners or not, creates a comprehensive estate plan so as to ensure the protection of their assets and their rights.

Speak to an Estate Planning Attorney About LGBTQ Estate Planning

For more information on LGBTQ estate planning contact Attorney Eric A. Rudolph, Esq. with The Law Offices of Eric A. Rudolph P.C., Palm Springs, CA. at (760) 673-7600 or schedule a consultation on our website.

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