Estate Planning for Same-Sex Couples
Estate planning for same-sex couples is a significant untapped market for lawyers that demands creativity to ensure clients are properly protected. Contrary to stereotype, not all lesbians and gay men are independently wealthy—most are squarely in the middle class—requiring that same-sex couples take additional steps to preserve their assets.
The basic layout is the same—last will and testament, advance directives, durable power of attorney and, possibly either an inter vivos or testamentary trust—but there are situations requiring special attention.
• For an increasing number of same-sex couples, providing for children requires extra care. Too often, only one parent is legally recognized and should that parent die or become incapacitated, the other parent could lose all rights to contact with the child. Include language in the will and durable power of attorney to address this situation, but make clients aware that the law is changing and there is no guarantee a judge will honor the provisions. In a guardianship clause include a sentence that the surviving partner is recognized by the decedent as the child’s parent and shall be given priority as the guardian. Also, provide an alternative, naming the surviving partner the guardian of the child’s estate. That permits the surviving partner to continue the relationship with the child (I call this the “Auntie Mame” clause) even if he/she is not named guardian of the child.
• Include a will clause specifying that the parties opened joint bank accounts and intended them to be held jointly, with the proceeds going to the survivor. Be explicit in stating the accounts were not intended to be “accounts of convenience.”
• Funeral arrangements is an area fraught with problems for same-sex couples. Many states limit the right to make these arrangements to the decedent’s immediate family. Others, such as Ohio, have enacted legislation removing that restriction and allowing every person to name someone to make these decisions. For same-sex couples, these laws permit each partner to name the other as the person authorized to carry out the arrangements.
• Using a designation of agent form allows one partner to name the other for myriad purposes such as funeral arrangements, hospital visitation, and possession of personal property. Retaining old documents, including superseded wills, also help establish a written record of the parties’ intentions.
With little in the way of boilerplate language involved, there is nothing stultifying in estate planning for same-sex couples. This is an exciting area of law—one that is constantly changing—and it requires both creativity and a desire to ensure that the clients’ intents and goals are met.
Joan M. Burda has a solo practice in Lakewood, Ohio, with an emphasis on estate planning for lesbians, gay men, bisexuals, and transsexuals (LGBT). She is the author of Estate Planning for Same-Sex Couples (ABA, 2004) and an upcoming ABA book on legal issues affecting LGBT families. She can be reached at firstname.lastname@example.org.