Most of us tend to put off end-of-life planning until we’re older, wealthier or “need” such things. But delaying this topic can cause stress and hardship for the loved ones you leave behind, and may even result in your wishes going unfulfilled – especially in the LGBTQ+ community.
Same-sex marriages were legalized in Ohio (and nationally) in 2015 with the Obergefell v. Hodges case, which many believe may now be in jeopardy as the U.S. Supreme Court seeks to overturn personal privacy cases after Roe v. Wade’s reversal last year. If Obergefell ends up on the chopping block, the legal protections of marriage may no longer apply, leaving queer couples without the ability to visit their spouse in the hospital, be notified as next of kin or serve as health care proxy in an emergency, or serve as executor of their spouse’s estate.
Attorney Allison Harrison, the owner of ALH Law Group in Columbus, says, “So much of what we do in the legal community is responsive. Something happened and we have to take action. Estate planning is proactive. It’s all about what you want to do and how you want to do it.”
While many think it’s morbid to think about death and estate planning, the idea that you can solidify your wishes and avoid that stress is actually quite a positive way to look at it.
It’s Always the Right Time
There is no right time to start your estate plan – aside from right now! Estate planning isn’t just for the elderly or sick. Anything can happen, and it’s important for you to decide proactively what your end-of-life wishes are so that they can be fulfilled on your terms.
Recently, Harrison shares, “We got a call from a client to come to the hospital. Their spouse had health issues that they knew about, but it was now terminal. And then it was necessary to pull a plan together while in hospice care. You’re already stretched to the max, and of course we do it because it’s needed, but it adds a whole extra layer of stress to this experience.”
A Spectrem Group study from 2014 found that LGBTQ+ people are less likely than their heterosexual counterparts to have a will. “The percentages for LGBT ownership of estate planning products does increase with wealth,” the study stated, “but never reaches the levels of the non-LGBT investors.”
For those in the community without investment portfolios and a growing net worth, estate planning may not come with worries about inheritance taxes, but it’s still an important concern no matter your income or wealth level.
More Than a Will
Estate planning encompasses much more than your last will and testament. Your will provides the details for your burial and how to distribute your assets and appoint guardianship of any children you leave behind. Unmarried partners are not legally entitled to any inheritance of assets upon your death without a will in place. It is critical that you plan for your death if you want to make sure that your assets go to your partner or spouse without issue.
A living will (or advanced directive) lays out your preferences for end-of-life care in the event you can’t speak for yourself due to injury or illness.
You should also draw up power of attorney documents including health care power of attorney (aka health care proxy)– which allows a designated person to make medical decisions for you if you are incapacitated – as well as a durable financial power of attorney if you are unable to handle your own finances. It’s also a good idea to name your spouse or partner as a beneficiary on your bank accounts.
What Happens Without These Plans?
Without a living will or health care power of attorney, your next of kin makes the decisions on your behalf. For people who are unmarried and without adult children, this typically means one or both of your parents.
Much of the benefit of estate planning is avoiding probate—a judicial process to “prove” distribution of assets—which can be lengthy and add more stress and uncertainty.
Harrison shares an example from her practice: “A client was married and owned property with his husband. They had a will, but the house was only in the husband’s name. So when his husband passed away, we had to go through probate to get the house into my client’s name. Had there been more planning to have joint names on the title or a transfer on death affidavit, you could avoid probate and not have to deal with that headache after losi
How does Estate Planning Differ for the Queer Community?
Simply put, Harrison says, it doesn’t differ. “Since Obergefell, LGBTQ couples are treated the same as straight couples throughout the nation.”
However, “members of the LGBTQ+ community are less likely to be married or they may have children where only one partner is the biological parent,” according to CNBC. The U.S. Census reports that roughly 58% of same-sex partnerships in the country are married – leaving 42% without the legal protections of marriage.
Harrison also points out that family members might impact the estate planning process regardless of marital status. “It happens all the time,” says Harrison – she’s seen families attempt to contest wills based on their disapproval of queer relationships, or lack of understanding that same-sex couples are indeed legally married. “We’re seeing less and less of it, but there are still quite a lot of folks who don’t understand that these are actual marriages.”
Putting your estate planning into clear legal documents can help you maintain your wishes whether or not you are legally married.
One consideration you definitely need to pay attention to is the labels on legal forms. Harrison says, “You need forms that say spouse or partner instead of husband and wife. The forms also need a non-binary option when asking for the gender of spouses or children.”
Estate Planning Next Steps
Estate planning is personal to each individual and couple. But for LGBTQ+ couples, it’s important to find an attorney or firm that will respect your identity and lived experience. Your attorney should use your correct name and pronouns and work with you to ensure that the paperwork reflects your identity rather than outdated husband and wife language.
ALH Law, based in Columbus, is a queer-owned law firm dedicated to providing quality legal services for the queer community! Find out more about them at their website. 🔥
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