Estate Planning for LGBTQ+ People

An estate plan allows you to direct where your assets go when you die and ensure your wishes and your relationships are honored. For LGBTQ+ individuals, the default rules that apply to an estate plan were largely written with a traditional picture of marriage and family. If you die without a plan, state intestacy statutes decide who inherits your assets, who raises your children, and who makes decisions on your behalf. Those rules may not reflect your spouse, partner, chosen family, or the family you have built through adoption, surrogacy, or assisted reproduction.

It is also critical to keep your estate plan updated to reflect current wishes. Life events that merit a review include the birth or adoption of a child, entering into a marriage or domestic partnership, a separation or divorce, the loss of a loved one, a move from one state to another (especially important for LGBTQ+ people), a legal name or gender change, or a change in your financial circumstances. Even without major changes, it is prudent to review your estate planning documents every year or two. 

Anatomy of an Estate Plan

Last Will and Testament

A Last Will and Testament directs where assets will go after you die and, where appropriate, names guardians for your minor children. It also names your executor (called a personal representative in some states)—the person or people responsible for carrying out your wishes and administering your estate under the laws of the state where you lived.

If you have minor children, you will want to name a guardian(s) and a trustee to manage assets left for their benefit. Naming guardians in a valid will is an essential protection.

Advance Health Care Directives

An Advance Health Care Directive names who can make medical decisions for you if you become unable to make them yourself. This document has particular significance for LGBTQ+ individuals. Before marriage equality and modern directive laws, same-sex partners were routinely denied hospital visitation and excluded from medical decision-making. Even today, if you are unmarried, partnered without being married, or relying on chosen family, a state’s default hierarchy for medical decision-making may bypass the people you want making these choices. Naming an individual explicitly is the only reliable way to ensure your wishes are honored.

Depending on where you live, an Advance Health Care Directive may also state your preferences regarding organ donation, access your confidential health information, and may include a living will, a binding statement of your end-of-life care preferences. If you have preferences regarding the custody and control of your remains—including who should be responsible for those decisions – you may state them, on a non-binding basis, in your directive. 

Power of Attorney

A power of attorney names a financial agent during your life. Default agency and intestacy rules often favor legal spouses or biological relatives, which can leave an unmarried partner or a chosen family member with no authority to act on your behalf. Because the powers granted are broad and sweeping, it is important to name someone you trust completely. You may also revoke this at any time.

Trusts

Many estate plans also include trusts to accomplish specific goals for a person or family. Trusts in estate planning establish control over how your assets are used after your death or disability; minimize estate taxes; create a framework of rules for a beneficiary’s inheritance and to leave assets to a current spouse or partner while ensuring that any remaining assets ultimately pass to your children from a previous relationship.

A Note on Chosen Family

Many LGBTQ+ individuals build close, family-like bonds with people not related by blood or marriage, aka “chosen family.” Chosen family members typically have no legal standing to inherit, to visit you in the hospital, or to make decisions for you unless you document those wishes. If chosen family plays an important role in your life, your will, trust, health care directive, and power of attorney are tools that give those relationships legal effect.

Beneficiary Designations

Beneficiary designations govern assets such as life insurance and retirement benefits, letting you direct, in a binding way, where those specific assets go when you die. Reviewing and updating your beneficiary designations is essential, especially after life changes. Updating your will alone is not enough. Assets with a beneficiary designation pass to whomever is designated, even if it is outdated.

Bringing It All Together

Estate planning gives you the power to define your family and protect the people you love on your own terms. Whatever your current situation—and whatever your age—taking the time now to put a complete, up-to-date estate plan in place is one of the most meaningful steps you can take to protect your legacy. 

—Lauren Davies

Lauren Davies is an attorney in the Trusts and Estates practice at Pullman & Comley, LLC.