Attorneys strongly advise gay and lesbian clients to prepare their estate plans, because the law generally would not offer many of the same protections as it does heterosexual couples. But following the recent Supreme Court decision in Obergefell v. Hodges, striking down the Defense of Marriage Act (DOMA), misinformation abounds, especially on the Internet, regarding whether LGBT seniors should bother considering estate planning now that marriage is an option for all. The short answer is a resounding yes.
Here are just a few benefits of estate planning that elderly LGBT clients can and should take advantage of, regardless of their marital status.
Wills & Trusts
For many years, estate planning attorneys were careful to explain worst-case scenarios for gay and lesbian couples. If one partner dies without a will or a trust, the “intestacy” laws of that state would control who in the decedent’s bloodline is entitled to inherit. These are incredibly strict rules with no wiggle room. If a couple is not married, the surviving partner will have no interest in the estate. Without a will or trust, same-sex couples may bury a beloved partner of many years only to find the entire estate must pass to adult children or other blood relatives. At times, these relatives may be the same people who completely estranged themselves from the decedent many years earlier.
Following the recent Supreme Court decision, marriage between same-sex couples is legal in all 50 states. Therefore, without a will or trust, a spouse’s basic right to inherit is likely protected. However, unlike their heterosexual contemporaries, LGBT couples may have lived with social stigma for years or even been ostracized by their own families. Default rules in some states provide that a surviving spouse and surviving children split the estate.
Therefore, without proper planning, people may unintentionally allow those who have long been estranged to inherit assets intended for a spouse, despite being legally married.
Likewise, until actually married, a partner is not considered an heir. No one wants to be forced into marriage before he or she is ready. Therefore, all the same cautions apply. Since we simply never know when we will die, it is best to plan for the future without relying on the anticipation of marriage. Having a will or a trust allows you to dispose of assets at death and direct them to people you love. Finally, spouses in most states cannot be completely disinherited by a will; instead, they have a right to take an elective share. This means there is a default amount that a spouse can claim from the estate even if the deceased spouse specifically said otherwise in the will. Trusts are more flexible in this regard.
Powers of Attorney
Many same-sex seniors have developed strong ties to “chosen families.” These are the people chosen to replace strong family bonds that were either lost due to social stigmas or family members being unwilling to accept their lifestyle. For this reason, some older adults who are now permitted to marry their long-time partners may overlook the fact that even once married, those same family members are likely to still harbor negative feelings.
There are plenty of horror stories involving heterosexual couples that failed to create adequate powers of attorney. Without advanced directives, a person may have specific end-of-life wishes that his or her spouse wants to honor. Nevertheless, parents, adult children, and other family members may not agree with those wishes. Only time will tell if hospitals and health care providers will automatically and uniformly defer to the instructions of same-sex spouse. Powers of attorney make clear one’s intentions and let the world know who is in charge of those difficult decisions, regardless of whether married, single, same-sex or not.
The law is always changing
With 15 Republican and 5 Democratic Presidential candidates already in the race for the 2016 election, there is no telling which way the tide will swing for LGBT marriage equality. Some candidates and state officials are already opining ways to either skirt the Supreme Court’s decision or outright disobey it.
Recently, the Atlantic reported on comments by Republicans Ted Cruz and Mike Huckabee, who both separately implied that states, government officials and those opposed to the ruling simply do not have to comply. While legal scholars can certainly debate that issue, these sentiments highlight that the fight is far from over for marriage equality.
As such, elderly LGBT couples, whether married or not, should take steps to prepare their estates and ensure that their individual wishes are carried out, regardless of how laws may develop in the future. This can be as simple as scheduling a consultation with a skilled elder law attorney to discuss the options. After all, marriage alone is not sufficient estate planning.