Estate Planning for the GLBT Community
Will you be shut out when your partner really needs you? This could happen without proper planning.
If a member of the GLBT community fails to properly plan, the result can be devastating to his or her partner and to the family as well. Having no estate plan or relying solely on Joint Tenancy or Tenants in Common as an estate plan is no different than relinquishing control of your estate as well as the management of your personal well being in times of incapacity.
The need for an estate plan is crucial in case of accident or illness that renders a partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could legally be precluded from having any role in the decision making regarding his or her partner’s care, managing their affairs, or even having access to an incapacitate partner while in a care facility.
Civil Unions, Domestic Partnerships and Same Sex Marriages – an Estate Planning Perspective
Many states and local jurisdictions offer civil unions, domestic partnerships, same sex marriage, or other similar methods of legal recognition for same sex relationships. The rights and responsibilities of registration vary substantially from jurisdiction to jurisdiction. For example, under New Jersey law, partners in a Civil Union are supposed to be afforded all of the same rights, duties and obligations of a spouse in a heterosexual marriage.
Prior to registering under any of these arrangements, be sure to speak with a qualified estate planning attorney who is an expert on the unique and personal needs of the GLBT community. That attorney can counsel you on the implications and advisability of registration for your particular situation.
The Problems Estate Planning Solves for the GLBT Community
A GLBT couple can avoid numerous problems through proper estate planning:
A Living Trust, as well as a General Durable Power of Attorney, can establish the client’s domestic partner as the Trustee (or manager) of the client’s affairs if the client were to become incapacitated due to illness or accident. Upon the death of a partner, the Living Trust protects privacy, which may benefit partners who wish to keep their circumstances confidential, by avoiding the process of public probate, which makes a copy of your Will available to the public.
The Health Care Power of Attorney confirms your wishes with regard to health care decisions and grants your domestic partner the right to make such decisions if you are unable.
A proper estate plan will ensure the client’s assets are distributed to whom he or she wants, when and how he or she has decided. A well-designed plan also ensures that the person designated (a guardian) retains custody and the legal right to raise any surviving minor children and that any assets passed to a minor child are managed by someone you appoint (a trustee).
Finally, although there are no federal spousal tax benefits (as opposed to those given to heterosexual couples) proper estate planning will ensure available strategies are used to avoid penalties, additional taxation when possible, and the financial and emotional hardship caused by a disorganized Estate Administration.