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Without estate planning, LGBTQ+ individuals risk having their healthcare and end-of-life wishes ignored. Your wishes need to be legally documented and prepared with your life and family structure in mind.
Queer estate planning ensures that LGBTQ+ individuals and couples have their wishes respected and their loved ones protected, particularly when facing unique legal challenges or family dynamics. It involves creating a comprehensive estate plan that addresses potential issues related to inheritance, healthcare decisions, asset protection, and any other factors specifically relevant to LGBTQ+ people and families.
Estate planning is typically several legal documents working together to document your end-of-life wishes and plans for scenarios when you may be incapacitated. Those documents include:
Complete our short questionnaire to discover what estate planning documents you’ll need based on your circumstances and priorities.
Estate planning is important for all individuals, but the LGBTQ+ community has special considerations that make it even more essential.
In Wisconsin, when someone dies without a will their assets are distributed according to intestate succession laws. In the absence of a spouse or biological or adopted children, the parents inherit all the assets. If the parents are not living, then siblings inherit. Without siblings, the inheritance goes to grandparents, nieces and nephews, or other extended relatives.
This can present an issue for members of the LGBTQ+ community, especially those who are estranged from family members. Having a will or a trust ensures that assets go to your chosen family, not inadvertently to unsupportive relatives.
Fewer members of the LGBTQ+ community get married compared to cis, heterosexual relationships. Unmarried partners lack several rights that married couples are granted. These include:
Inheritance Rights: If someone dies without a will, their spouse has the first right to inherit automatically. Unmarried partners are not on the succession list at all, nor are unadopted children. To avoid these important family members being left out, estate planning is critical.
Next of Kin Decision Making: Spouses can make decisions for each other in emergency medical situations. They can also plan their spouse’s funeral and burial. Without being married, estate planning documents are necessary to ensure your partner is the one with decision-making power in those situations.
If an LGBTQ+ family runs into disputes, a variety of legal documents can be put into place to help alleviate the tension and create controlled resolution procedures, regardless of any marital status. Real Estate Co-Ownership Agreements can help decide what happens to a family home in the event of a dispute, such as who has to move out of the home and whether there is a controlled buyout of the departing partner’s equity interest.
Civil agreements can also stipulate that a couple will attend professional mediation counseling to resolve disputes and put normal contractual rights into place to mirror marital rights, such as stating co-equity interest in each other’s property.
Probate is the court-supervised process of determining if there is a will then distributing assets when someone dies. The process is time consuming and can be stressful. It is also a public process. The will, beneficiaries, assets, and disputes are all public record. At best, probate is time consuming and expensive. At worst, it can out the deceased and deny partners an inheritance.
Wills alone do not avoid probate, but trusts can. Trusts are private entities, so the beneficiaries and assets are not part of public record. Trusts also offer more control over how assets are distributed.
The trans community has unique challenges in making sure that their legal documents accurately reflect their gender and have their correct name. This can be important for proving who heirs are in inheritance situations, especially if names and genders listed in a previous document have not been updated.
If a person’s current legal framework does not match the names and gender on older documents, it can create confusion in court or in dealing with third parties. Documents could include old power of attorneys, birth certificates, marriages licenses, divorce decrees, and other identifying documents. Our firm ensures that modern legal documents for trans clients correctly and respectfully identify the person’s current gender and name, while also referencing past identities, so there is no confusion when dealing with the government or third parties.
Legal recognition of gender identity may be challenged in the future, as it has in the past. Therefore, it is wise to draft legal documents to be descriptive and informative in correctly describing a person’s current gender and identity, while clarifying any changes from their old identity. Such documents should have contingencies that state the document is still legally effective, regardless of any governmental changes to gender recognition.
If a person serves as a power of attorney, executor, or personal representative of a will, or trustee of a trust, the person’s identity should be made clear in the document. If the person is trans and/or non-binary, the document should describe their current name and gender, as well as briefly address any former identities of the person. This will prevent confusion and secure better compliance in dealing with third parties or the government.
