LGBTQ Estate Planning

LGBTQ Estate Planning – Estate planning is important for everyone, but it is particularly important for members of the LGBTQ community who may face unique challenges when it comes to legal recognition and protection of their relationships.

But before we continue, a respectful disclaimer.

We acknowledge that the language surrounding gender identity and sexual orientation is constantly evolving and expanding. While the acronym LGBTQ has become a widely recognized and accepted term to represent the diverse community, we understand that there are individuals who prefer other variations such as LGBTQIA+, MOGAI, or other identities that may not be included in the acronym. We recognize that not using the most current and inclusive language can be harmful and dismissive to those who identify with such labels. Therefore, we humbly ask if there are any possible oversights in using the acronym LGBTQ instead of the ever-expanding and evolving letters and symbols. We want to ensure that we are inclusive and respectful in our language and actions towards all members of the community.

— John F McCarthy

Estate planning for LGBTQ individuals can be more complicated in California due to several factors, including:

LGBTQ Estate Planning: Protect Your Rights and Loved Ones
  • Lack of Legal Recognition: California has recognized same-sex marriage since 2013, but some LGBTQ individuals may have entered into domestic partnerships or civil unions prior to that. These relationships may not be recognized in other states, which can create complications when it comes to LGBTQ estate planning.

  • Inheritance Taxes: The federal government and most states do not tax inheritances, but some states, including California, have an estate tax. LGBTQ individuals may not be able to take advantage of the same tax exemptions as heterosexual couples, which can result in higher taxes on their estates.

  • Beneficiary Designations: LGBTQ individuals may face challenges when designating beneficiaries for their retirement accounts and life insurance policies. Some employers and financial institutions may not recognize same-sex relationships or require additional documentation to establish the relationship.

  • Family Disputes: In some cases, LGBTQ individuals may face opposition from family members who do not approve of their “lifestyle” or relationships. This can create tension and legal disputes when it comes to estate planning, particularly if there is no clear legal documentation in place. 

CC BY-SA 3.0 – Mayor Gavin Newsom issuing the first marriage license to a same-sex couple, Del Martin and Phyllis Lyon, on February 12, 2004, San Francisco

In California, same-sex marriage has been legal since 2013, and registered domestic partnerships have been available since 2000. This means that couples in same-sex marriages or registered domestic partnerships are entitled to many of the same legal protections as married heterosexual couples.

However, it is still important for members of the LGBTQ community to engage in estate planning to ensure that their wishes are respected and their loved ones are protected. Here are some things you should consider:

  • Create a will: A will is a legal document that outlines how you want your assets to be distributed after your death. Without a will, your assets will be distributed according to California law, which may not reflect your wishes. You can name beneficiaries, designate guardians for any minor children, and name an executor to carry out your wishes.

  • Consider a living trust: A living trust can help you avoid probate, which is the court-supervised process of distributing your assets after your death. This can be time-consuming and expensive, and it is public record. A living trust allows you to transfer ownership of your assets to a trustee, who can distribute them according to your wishes after your death.

  • Designate beneficiaries: Make sure you have designated beneficiaries for any retirement accounts, life insurance policies, and other assets that allow you to name beneficiaries. This ensures that your assets go to the people you choose.

  • Consider advance directives: Advance directives are legal documents that allow you to name someone to make healthcare decisions for you if you are unable to do so. This is particularly important for members of the LGBTQ community who may not have legal recognition of their relationships.

  • Review your estate plan regularly: It’s important to review your estate plan regularly to ensure that it still reflects your wishes and any changes in your life circumstances.

Award-winning Central Coast estate planning attorney John McCarthy has been an ally to the LGBTQ community for years.  Prior to focusing on estate planning, he was a civil rights lawyer fighting against discrimination in the workplace on the basis of sex, sexual orientation, and gender identity.  He offers a FREE, confidential consultation. What are you waiting for?  Schedule your free, confidential consultation, with an award-winning, LGBTQ friendly lawyer today.  

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