Same-sex marriage was legalized in the United States in 2015, but there is still confusion around how to define these couples when planning for worst-case scenarios. This lack of clarity makes proper estate and family planning for the LGBT community crucial to ensure loved ones are taken care of and last wishes are honored.
Marital Status
While getting an estate in order, a couple should disclose their actual marital status so that the proper planning can be effectuated. For example, many LGBT couples in civil unions have not gone through the process of changing their status after same-sex marriage was made legal. However, couples in civil unions do not enjoy the same legal benefits as those who are married. LGBT couples should seek competent counsel to educate them about the legal differences between a civil union (or other domestic partnership) and a marriage, and how each will affect their rights upon the disability or death of one partner.
Proper Documentation
When a will is not created, the deceased’s wishes cannot be taken into account. As a result, all assets are distributed based on the state’s laws of Intestacy. In Illinois, if a married person with children dies without an estate plan, fifty percent of all assets go to a living spouse, and the remaining fifty percent are equally divided among direct descendants. Since the law is still evolving on how children of a same-sex couples are treated when a non-biological parent who has not adopted the children dies, it is critical that LGBT families not rely on the laws of intestacy to properly distribute the estate.
It is also a common misconception that a significant other is automatically the designated decision maker in the event of a medical emergency. Unless a couple is legally married, major health decisions (and even hospital visitation rights) are only given to the person’s next of kin. Couples who are not legally married (both same-sex and heterosexual couples) should execute a Health Care Power of Attorney to avoid an undesired result.
Guardianship
Guardianship should be clearly stated and should be reciprocal in both parent’s Wills. Because it is common for only one parent of a same-sex couple to have biological ties to the child or children, properly designating the non-biological parent as guardian is at least one step a family can take to make sure that the remaining parent is appointed. It may also be prudent for the couple to consider adoption for this purpose.
Planning needs for LGBT couples are unique and it’s important that these couples seek an experienced attorney who can navigate the complex and ever-changing laws in this area.