Estate Planning for members of the LGBTQ Community: What You Need to Know

Recognition of same-sex marriage nationwide in the historic 2015 U.S. Supreme Court decision, Obergefell v. Hodges, was a huge step forward for the LGBTQ community and made many aspects of estate planning much easier. However, even with this important development, there remain many facets of estate planning for which LGBTQ individuals, couples and their families need to pay special attention. Following are several of these items:

Provision for Children. Although marriages of same-sex couples are legally recognized, children of married same-sex couples are not automatically recognized as the children of both individuals for all purposes. The best protection for ensuring such recognition of parentage is second-parent adoption, a common legal procedure that is recognized nationwide (you can read more about second-parent adoptions in an article I authored for the Legal Intelligencer earlier this year). Second-parent adoptions can sometimes be delayed due to the business of everyday life, and perhaps, financial considerations. That is why it is important, in addition to obtaining a second-parent adoption, that LGBTQ couples specify in their wills and other estate planning documents that children of the other spouse or partner, who may not yet have been legally adopted, are to be considered children of both spouses or partners. Similarly, grandparents of children of LGBTQ couples  who wish to ensure that all children of such couples, regardless of which member of the couple is a genetically-related parent, will be treated alike, can include specific language to eliminate doubt as to intent that all children of the couple shall be considered grandchildren for purpose of the will and estate plan.

Names and Gender Identification. There is now increasing awareness and openness regarding transgender individuals and persons with non-binary gender identification. It is becoming increasingly common for transgender and non-binary individuals to publicly and legally change their gender identification and names. To reduce the chance of potential problems with inheritance or receiving assets under beneficiary designations, such individuals, their parents, and families can take some easy, but important steps. 

It is helpful to use gender-neutral terms such as “child” rather than “son” or “daughter” and “spouse” rather than “husband” or “wife.” If a child or other relative has changed their name as part of a transition in gender identification, it is important to update documents to reflect the changed name to avoid disputes that the person referred to is not the child or beneficiary claiming the asset. If there is a possibility that there are accounts or assets which may still be in the prior name, one can use an a/k/a/ (also known as) or an f/k/a (formerly known as) designation to avoid potential confusion.

Estate Planning related to Assisted Reproduction. While not exclusively an issue impacting LGBTQ couples, LGBTQ couples wishing to have biological children are more likely to make use of assisted reproductive technologies (ART). When ART is used, it is common for there to be frozen embryos and gametes that are stored for future use. It is important to plan for the disposition of such stored embryos and gametes in the event that one or both spouses die. 

Should the surviving spouse be able to use the frozen embryos alone? If both spouses die, what should happen to the frozen embryos? Should they be donated for use by other family members? How will storage fees be paid? How long after the death of a deceased spouse can a posthumously born child be included as a beneficiary of one’s estate? 

These issues should be addressed both in wills and, if it is desired that a surviving spouse be able to use such frozen embryos, a document specifically stating consent to become a parent after death. It is also necessary to have documents of instruction filed with the facility that is storing the frozen embryos or gametes. Care and investigation should be done regarding what laws apply in the location where the embryos or gametes are stored. In some jurisdictions, instructions in a will may not be enough. If embryos or gametes are being stored at a particular location and that becomes problematic, either due to a move or because local laws present obstacles, moving the embryos to a more convenient facility can be considered. While there is some cost for such services, relocation is possible.

Being Childless. While it is increasingly common for LGBTQ individuals and couples to have children, they still have a higher rate of being childless than the overall population. Not having children raises a number of planning issues that need to be considered. To whom does one want to leave assets if there is no surviving spouse or partner? Other family members? Friends? Favored charities? Whatever the choice is, it is important to specify those choices through a will, trust, or other estate planning document, since the default dispositions of state intestacy laws may yield undesired results.

Consideration must be given as to who will see to medical care and decisions in the event of disability or incapacity, particularly when one’s spouse or partner is deceased or has a disability. For many families, children are a clear choice after one’s spouse, but what if there are no children? Other relatives? Friends? Such questions can be addressed in living wills/medical directives, durable powers of attorney and other planning documents. These documents designate who is to handle one’s healthcare and financial decisions, and can also record who a person desires to have appointed as their legal guardian should a court ever make a finding that they have become legally incapacitated.

The above information is intended only to spotlight some estate planning issues, which can be of importance to LGBTQ individuals, couples and their families, as well as others. This article is not intended to be legal advice. The estate planning attorneys of Reger Rizzo & Darnall LLP can provide in-depth legal advice and solutions for your particular situation.