June is a time of celebration and reflection for the LGBTQ+ community.  While significant strides have been made – the legalization of same-gender marriage and increasing recognition of LGBTQ+ families, to name a few – there is still a large gap in estate planning for LGBTQ+ individuals and families that could leave your loved ones with a big mess.

Estate planning laws are still written assuming a hetero, cisgender standard, and many lawyers aren’t well equipped to customize estate plans to account for the unique family dynamics and wishes of LGBTQ+ clients. Sadly, if you are in a non-traditional family dynamic of any kind, the people you love most could find themselves accidentally disinherited from your estate or stuck in a lengthy and expensive court battle.

To make sure your family is well-cared for no matter how the law defines you, keep reading to learn why customized estate planning is so crucial for LGBTQ+ and all non-traditional humans.

1. Care for Your Family as You Define It

The concept of family has expanded far beyond the confines of the traditional “nuclear” family. Gratefully, we now celebrate the beautiful diversity of family structures, encompassing same-gender couples, unmarried partners, civil unions, polyamorous relationships, and an array of other unique family dynamics. However, when it comes to death or incapacity, the law still lags behind, often failing to accommodate non-traditional family units in ways that you would choose.

If you die without an estate plan in place, the law will apply the state’s default estate plan to your unique situation. Under the law’s default plan, your possessions and money will pass to your next closest relatives by blood or marriage In California, that’s your children or, if none, your parents and then siblings, aunts and uncles, cousins, and so forth. If you aren’t legally married to your partner or partners, the people closest to you would be automatically disinherited under the current law.

Likewise, if you have children who are genetically unrelated to you and whom you haven’t formally adopted – like a partner’s child or stepchild – those children will not receive anything from your estate. Even if you’re married to the child’s parent, California law does not recognize a stepchild as a direct descendant and therefore doesn’t include them in its default plan.

To make sure your chosen family is taken care of, it’s important to create a custom estate plan that ensures your assets are distributed according to your wishes.

2. Protect Your Financial and Health Care Rights

If you ever wondered who would take care of you and your things if you become ill or incapacitated, your first thought is probably your partner. Right? After all, it seems like common sense that your partner of ten years (or 2 or 5 or 25) – inside or outside marriage – should be the one to make healthcare decisions for you or pay your bills.

But unfortunately, the law doesn’t assume that you’d want any particular person making decisions for you if you become incapacitated. Instead, your family members will need to go through a stressful court guardianship procedure to be granted decision-making power by a judge.

If your family members can’t come to an agreement on who should be your decision-maker, the court may assign a professional guardian – a complete stranger – to make decisions for you instead!

To avoid court involvement altogether, it’s vital to name your chosen decision-makers – using a Durable Power of Attorney – long in advance of ever needing them. This is especially important if you want to choose a decision-maker who isn’t related to you by blood or marriage, or if you want to ensure your lifestyle choices or beliefs – such as a special diet, style of dress, or hormone therapy – are still carried out during your incapacity. 

If you don’t put these wishes on paper and name someone to uphold them, it’s likely a judge won’t appoint your chosen decision-maker. In this case, the person the judge chooses can make whatever decisions for you they feel are best, even if that means ignoring your chosen gender expression or identity.

No one expects to become incapacitated due to an illness or injury, but sadly it happens. Legally naming a decision maker in advance and itemizing your wishes helps to safeguard your rights, ensure that your care wishes are honored, and avoid family conflict.

Work With a Lawyer Who Understands You

Protecting your family and your wishes as an LGBTQ+ individual requires the guidance and expertise of a lawyer who understands your unique circumstances and desires for your family. That’s where we come in.

While the law may still fall short in accommodating the diverse family structures and dynamics that exist today, we understand that every family is different, and we know how to craft a custom plan that not only protects your loved ones and your wishes, but also embodies the values, beliefs, and stories that make your family unique.

If you want to make sure your LGBTQ+ or non-traditional family will be cared for and supported no matter what the future holds, schedule a free 15-minute discovery call at this link to learn more about how I serve LGBTQ+ families differently than other lawyers. Then, check back next week when I cover part two of this blog.

This article is a service of Jane Legal PC. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a free Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been and make all the best choices for your chosen family. Begin the process by scheduling a 15-minute discovery call.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such services should be obtained separately from this educational material.