Despite the recognition of marital equality by the U.S. Supreme Court in 2015, same-sex couples and LGBTQ families have unique estate planning challenges. From questions over the validity of a will to custody battles over non-biological children to family attempts to interfere with medical and financial decisions of a partner, it takes a highly skilled estate planning lawyer to protect your interests and your future.
At Guttman Law, we provide comprehensive estate planning services to individuals, couples, and families from all walks of life throughout Minnesota. When you consult with us, we will provide you with compassionate representation and a supportive environment in which you can make informed decisions about your future.
We have a well-earned reputation not only as innovative estate planners, but as dedicated advocates of the LGBTQ community in Minneapolis, St. Paul, and all of Minnesota. Contact us today so we can start designing your estate plan.
Estate Planning Considerations for Same-Sex Couples
LGBTQ individuals and same-sex couples have many of the same estate planning considerations as traditional families, but unique exigencies as well, such as:
Transfer of Assets: Wills and Trusts
Wills are not only important for married same-sex couples but also members of the LBGTQ community who are in committed relationships but not married. According to 2019 U.S. Census Bureau figures, of the 980,000 same-sex households reported, 58 percent were married couples and 42 percent were unmarried partners.
Regardless of whether or not you are married, a will is the most basic estate planning document that establishes how your assets are to be managed and distributed after your passing. A will can also help to plan for minor children by naming guardians and establishing inter vivos trusts in the event of your incapacity or sudden death.
Without a will, your assets will be distributed according to intestacy laws of Minnesota, which prioritizes surviving spouses, parents, and children. This means that if you’ve yet to marry, your partner’s inheritance rights will not be established.
Even if you already have a will in place, it is important to ensure that your beneficiary designations are up-to-date and aligned with non-estate assets such as retirement plans (IRA, 401(k)), life insurance, and other non-titled assets.
Finally, many LBGTQ estate planners can benefit from establishing trusts jointly with a will to ensure that their assets are properly and seamlessly distributed. Trusts can help to achieve several objectives, such as:
- Avoiding probate and potential will contests
- Minimizing estate taxes*
- Providing for a loved one with special needs
- Establishing a charitable legacy
Depend on Guttman Law to be your trusted advisors and tailor an estate plan to your needs and objectives.
*Though less than 1 percent of estates are subject to federal estate taxes under the present tax scheme, tax laws are always subject to change*
Incapacity Planning for LGBTQ Couples in Minnesota
When it comes to estate planning, a will is not enough. Same-sex couples must also document their wishes about who can make medical and financial decisions for partners who become incapacitated or unable to communicate.
This is of critical importance to members of the LGBTQ community since they tend to be challenged more often than traditional couples regarding these decisions. Our estate planning attorneys will ensure your plan includes the following essential documents:
- Durable power of attorney designates a trusted person (e.g. spouse, sibling, close friend) to handle your personal and financial affairs if you suffer an illness or become incapacitated.
- Advance health care directive (also called a health care proxy) names a person to make medical decisions on your behalf according to your preferences if you are too ill or incapacitated. This is especially important for those who are unmarried or in domestic partnerships in order to prevent family members from interfering in these matters.
- HIPAA authorization allows doctors and other healthcare professionals to disclose private health information and records to your designated health care power of attorney or trustee during an emergency.
Protecting Your Children
Same-sex parents also have unique estate planning concerns when it comes to children, especially in situations in which only one partner is the biological parent. At Guttman Law, we regularly advise clients of the adoption process, often referred to as stepparent adoption or co-parent adoption to establish:
- The legal relationship between the non-biological parent and children.
- The rights of the children.
Our estate planning lawyers will also work with you to ensure that your children are properly designated as beneficiaries in your will and/or trust documents so that their inheritance rights are protected.
Protecting Your Property Rights
Same-sex couples should also review real estate documents, especially for property purchased before marriage equality, to make sure that the family home and other real property are properly titled:
- Tenants in common — Both parties share ownership of the property (house), but each individual is allowed to leave their shares to anyone in the event of their death.
- Joint tenants with rights of survivorship — Both individuals are owners; if one passes away, the other automatically gains sole ownership.
- Tenants by the entirety — This form of ownership is reserved for married couples, including same-sex partners, and provides additional protection against creditors.
Our estate planning attorneys will work with you to ensure all property ownership is up-to-date and aligned with your estate planning documents.
Potential Issues from Before Marriage Equality
Finally, to protect their estates and their interests, many LGBTQ individuals still need to resolve potential lingering issues from before marriage equality was recognized federally, as well as before same-sex couples were first permitted to marry in Minnesota, such as domestic partnerships, civil unions, and other legal arrangements they may have created. By working with our legal team, you will have peace of mind knowing that your marital rights are protected.
Contact Our Experienced Minnesota Estate Planning Professionals
Proper estate planning is essential for everyone in Minnesota, especially for LGBTQ individuals and same-sex couples, whose rights to equal protection under federal law have yet to be codified by lawmakers despite legal rulings by the courts. The best way to protect your rights is to work with the experienced estate planning attorneys at Guttman Law. Contact our office today for a consultation.