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Estate Planning for the GLBTQ Couple

April 1, 2013

Last week the United States Supreme Court heard two cases involving GLBTQ rights.  On Tuesday, March 26, the Court heard arguments in Hollingsworth v. Perry.  This involves Proposition 8 from California, which took away the right in California for same-sex couples to marry.  On Wednesday, March 27, the Court heard arguments in U.S. v. Windsor.  This involves the Defense of Marriage Act (1996), or DOMA.  DOMA is a federal statute that only recognizes marriages between one man and one woman; so while your state (say, Iowa) may recognize marriages between same-sex couples, the federal government does not.

So, why is an estate planning-family law attorney interested in the outcomes of these cases?  Because right now I have to advise very different options for my clients who are GLBTQ and my clients who are heterosexual.  GLBTQ clients have to go through extra measures (legally) to be afforded some (not all) of the same rights as their opposite-sex-couple counterparts.  While I work, hope, and pray that someday soon I will not have to make the distinction, today, tomorrow, and probably still next week, I will have advise my clients differently.

If you are part of a GLBTQ couple, it is crucial that you and your partner have an estate plan.  In Minnesota, GLBTQ couples are not afforded the same statutory protections that married heterosexual couples are afforded.  So, while it is important for everyone to have an estate plan, it is extra important if your rights are not guaranteed by state statute.

While some hospitals and clinics offer rights and protections to same-sex couples, not all do.  It’s very much a policy that varies from hospital to hospital.  This is why it is important to have a Health Care Directive.  If there is tension/dislike/disagreement in the family about one of the partners’ orientation, a Health Care Directive is even more crucial.  The Health Care Directive will tell the doctors, nurses, and hospital administration who they should be talking to regarding the patient.  While a Health Care Directive is by no means a magic wand to fix all ills, it will at least tell your doctor who will speak for you when you are ill.

A Will and/or Trust will make sure your assets – and your children – go where you want them to go.  If your partner has not legally adopted your legal (biological/adoptive) children, it is critical you have a Will and/or Trust to make sure your children are cared for by their other parent.  If the children have a legal parent who is not your partner, then things become more complicated.  I wrote in greater detail about the legal parents HERE.

It is terrible that some couples are offered these protections automatically by statute and some are not.  It is terrible that some couples have to pay to be afforded some of the protections many receive automatically at “I do.”  But that’s reality right now.  The good news is you can still protect yourself and your loved ones with a Health Care Directive and a Will and/or Trust.

Call Claire today to set up a consultation for your Estate Plan today: email: Claire@trallelaw.com or phone: 612-787-2553.