LGBT special considerations in Estate Planning
If you die without even a will and your loved one goes to the court to start a probate matter, unfortunately, unless you are legally married, depending on where you live, you may be stuck with a probate judge who could make assumptions about what should happen to your children and who should be empowered to make those decisions. In the case of any parent who fails to write down their wishes but especially for someone who is gay, lesbian, bisexual or transsexual, these assumptions may be exactly the opposite of what you would have wanted. Unfortunately, the law is not perfect as it often based on human biases.
At the Foster Legal Advisory Group, we assist our clients by helping them communicate very clearly what their wishes are in their legal documents. Unfortunately it has happened that after a beloved partner dies, the survivors have seen severe resistance and threats of litigation from their families or children from a prior relationship. This often occurs because the family does not "approve" of the relationship and after a death, statements of intent are gone. If our clients believe there might be a fight or difficulties with estranged family members who might take advantage of a surviving partner, we create estate plans with trusts, living wills, powers of attorney, HIPAA forms and other documents that allow our clients to control what happens to their financial assets, their personal care and their beneficiaries.
Why You Need a Proper Estate Plan
Everyone over the age of 18 needs a proper estate plan to protect their personal rights and ensure that the persons he or she wants to make legal, financial and healthcare decisions have their same values. Estate planning is also necessary to protect beneficiaries - whether it be a spouse, partner or a non-family member.
If you are a member of the LGBT community, estate planning is important for you for the following reasons:
If you become ill or incapacitated, your partner may have no say in what happens to you and could even be prevented from visiting you if your family objects in any way and you have not done the proper nominations. Unfortunately without incapacity nominations it will be a court how will decide who will care for you and that is often the person who paid the money to get to the courthouse first.
If you are not married to your partner, he or she will not have a right to inherit unless you create a will or trust.
If you have minor children who are not the biological children of your partner, someone else may be named as the guardian of your children.
Sometimes probate courts will pay attention to the partner of the person who is deceased or incapacitated. Other times, the courts will treat the partner as a total stranger - especially if there is a blood relative with money and a lawyer standing in front of a judge with a different idea of who should care for you and who should manage your money.
It is essential to create these plans before you need them. Waiting until death or incapacity will give someone else too much power over what happens and will leave all your personal and financial affairs exposed to the public.
If you would like to speak to us at the Foster Legal Advisory Group about creating estate plans that protect everyone you love, please call us today.
Albuquerque - 505-835-6580
Santa Fe - 505-989-9299
Cell - 505-238-8385