Protecting LGBTQ+ Families Through Estate Planning
All adults, regardless of race, ethnicity, gender, or sexual orientation, need estate planning. For LGBTQ+ couples, however, failing to have a well-crafted plan in place can present additional risks. Treetown Law is here to help.
In June 2015, the Supreme Court of the United States announced, in Obergefell v. Hodges, that states were no longer able to deny marriage to same-sex couples under the 14th Amendment. Since that landmark decision, same-sex marriage has been legal in all states, but other legal regimes that have historically hinged on heterosexual marriage have been slow to evolve. State courts and state administrative agencies are adjusting their practices, but most state legislatures have failed to enact comprehensive reform. One of those legal regimes that hinges on marriage—and has not yet caught up with Obergefell—is the legal parentage of children born of a marriage. This has implications for guardianship and the ability for children to inherit from their non-biological parent under intestacy law (the state law that determines who inherits when there is no will).
Treetown Law is committed to serving the unique needs of every family—and to ensuring your family relationships are honored and protected through estate planning. Below are three important estate-planning considerations for LGBTQ+ families.
Three Estate Planning Considerations for LGBTQ+ Families
Marriage
If you signed estate planning documents with your partner or spouse prior to 2015, it is critical for you to have an estate planning attorney review them. If you and your partner are married, the recognition of same-sex marriage could open up new planning opportunities that may not have been available prior to 2015.
If you are not married but are considering tying the knot, a trusted attorney can discuss with you estate planning and tax implications that you may want to factor into your decision. Regardless of what you decide about marriage, however, a well-crafted estate plan can help you honor your relationships and protect your loved ones.
2. Children
LGBTQ+ families have always known that family relationships are not only about love and commitment—they are also about legal recognition. Just as your spouse is your spouse, your children are your children—and these relationships deserve recognition and security under the law. Legal parentage has important implications for your estate, especially if you die intestate (that is, without a will). For example, a legal parent will be the presumed guardian of a child if the other parent dies or becomes incapacitated, and legal parentage is required before a child can inherit from a parent who has passed away under intestacy law.
If you live in Michigan and you welcomed a child prior to 2015 or prior to marriage, the non-biological parent must complete a step-parent adoption (sometimes called a confirmatory adoption) in order to ensure their legal rights. (There is currently no reliable way to achieve a confirmatory adoption for an unmarried same-sex partner in Michigan.) In the absence of legal parentage (and in addition to it—for increased legal protection), estate planning documents allow you to name your child’s guardian and name your child as a beneficiary, regardless of the legal status of your relationship.
In Michigan after 2015, if your child was conceived or born to one spouse during the marriage of two women, the other spouse is considered to be the legal parent of that child, per post-2015 interpretations of existing law. There are additional complexities if the couple uses a known sperm donor, and for children born of a marriage of two men, so couples in one of these circumstances must seek legal counsel.
The bottom line for everyone, however, is that until there is comprehensive statutory reform, it is critical for both parents to name each other as guardian and to provide explicitly for their non-biological children as beneficiaries in their estate planning documents.
3. Your Chosen Family
If you do not have an estate plan, state law will fill in the gaps by defaulting to your spouse or legal relatives. For some unmarried folks, these could be the last individuals you want to act on your behalf or receive your money and property. If you and your partner are not married and do not plan to get married, you will need to make sure that your estate planning specifically appoints them to the roles—such as personal representative, trustee, agent under a power of attorney, or patient advocate—you want them to have, and designates what your partner is to receive at your death. If you have good friends that you consider to be your family or causes that are close to your heart, your estate plan will allow you to protect and provide for them.
If you no longer associate with your biological or legal relatives, proper planning can ensure that they will have little or no involvement in your affairs after your death, thus reducing the possibility of contests. Preventing these types of problems for your partner and other chosen family members is a gift that will allow them to focus on their grief and healing.
Treetown Law is here to help LGBTQ+ families navigate your unique relationships, circumstances, and goals. Estate planning can provide you with the peace of mind that comes with knowing that your family will be taken care of and your wishes will be carried out after you are gone.
Don’t wait. Set up a complimentary consult with Ashley today, and get on the path toward protecting your legacy and your loved ones.
