Portrait of Male Gay Couple with Adopted Child

LGBTQ Couples and the Importance of Estate Planning

The Elder & Disability Law Firm, APC April 17, 2023

Since the U.S. Supreme Court decision in Obergefell v. Hodges in 2015, LQBTQ couples enjoy the same rights to marriage as heterosexual couples. These rights also extend to estate planning and providing for your loved ones when you’re gone and also planning for every contingency in life for yourself, whether you’re married or not. 

You’re never too young or too old to commence estate planning, but you can be too late. The pandemic should have taught us that anything can happen at any time to challenge us and our well-being.  

To learn more about your rights and options in estate planning as a member of the LGBTQ community, contact The Elder & Disability Law Firm, APC. We are located in Redlands, but we serve all surrounding communities, including Rancho Cucamonga, Riverside, and Palm Springs. 

What Is Estate Planning? 

When people hear the term estate planning, often the first thing that comes to mind is the concept of a last will and testament, but there is more to it than that. Estate planning lets you choose what to do with your assets and finances after death, while also letting you choose what to happen to you in case of incapacitation. Still, wills are an important aspect in planning your estate.  

A will is an essential building block that provides for your loved ones when you’re gone, but it is not always the optimal approach, since a will must go through probate court proceedings. This can take months and chew up lots of cash in compliance and legal costs. 

A living will avoids probate and is much quicker to administer, but there are other legal instruments just as vital. A power of attorney (POA) for financial matters may also be essential should you become incapacitated, or simply out of the country and unable to manage your own affairs. An advance health care directive also can ensure that your medical treatment preferences are observed should you end up in the hospital and unable to speak for yourself. 

Estate Planning for Unmarried Partners 

Of course, the main point of creating an estate plan if you’re in a partnership is to help provide for your partner when you’re gone. You may have joint assets that can transfer outside of probate proceedings, but assets held in one person’s name need to be designated to the surviving partner. 

A will certainly can transfer your assets to your partner, but as noted, your will only becomes effective upon your death, and then it must go through what is usually months of probate proceedings. The length depends on the extent of your assets—and your debts, which must be satisfied during probate. And, because the partners were unmarried, that may create more issues in court, so getting the support of a skilled estate planning attorney is vital that you protect your future and the future of your loved ones. 

A better option is a living will, which is active the moment you create it. At the outset, you are the trustee of your living trust who will continue to manage your assets by yourself until you become incapacitated or pass away. At that point, your successor trustee—presumably your partner—will take over and can distribute those assets as you stated in your trust. 

An advance health care directive gives someone the power to voice their medical treatment options should they become incapacitated. The document will contain your choices for treatment, or non-treatment, and your designed healthcare agent (presumably your partner or another loved one) can convey those choices. 

A power of attorney is another essential component should you find yourself in a situation where you cannot manage your own financial affairs. This could be because you’re on a long trip and don’t have the time or inclination to manage matters on your own, or again, because you’re incapacitated. 

Fortunately, in California, there are no estate or inheritance taxes, and on the federal level, there is no estate tax until your assets surpass $12.92 million in value. 

Estate Planning for Married Couples 

The same considerations mentioned above also apply if you’re married. However, if you have children, then you have to include them in your plans as well. For minor children, you may need to designate a guardian should you die before they reach the age of majority. This can only be done through a will and not through a trust, so even with a trust, you would need a will to name a guardian. Otherwise, the court would be forced to name one. 

Reliable and Compassionate Legal Aid 

Our services are available for individuals and families of all ages, situations, and experiences. If you’re a member of the LGBTQ community and wish to explore more about your estate planning options, reach out immediately to us at The Elder & Disability Law Firm, APC. We serve clients throughout the Inland Empire.