ESTATE PLANNING ISSUES FOR LGBT PEOPLE
Estate planning for LGBT clients is the same but different. When I started my practice, the idea of same sex marriage was pie in the sky at best. During that seemingly endless period of time, estate planning for gay or lesbian couples who wanted to stay together was a complex dance of law, finances and emotions. Something as simple as taking title to a home that was purchased together, deciding if and how to leave retirement funds to a partner, nominating agents for health care and finances, choosing an executor for a will or trustee for a trust were all fraught with difficult decisions that were often misguided and resulted in bad outcomes. Relations with families of origin posed seemingly insurmountable obstacles: would a family member try to override a choice of agent, challenge a will that left assets to a partner? I saw situations in which when a partner died, his or her parents came to the house that had been shared over many years and removed personal assets. And that happened where the parents had more or less accepted the gay partnership over several years; where there had been no acceptance, strained or non-existent relations, the drama was much greater and the surviving partner severely affected.
Today, if a same sex couple want to marry, they may do so and their marriage is legal across the country. That is not to say that there is not still hostility, aborted and ugly attempts by local government agencies to impede and roll back same sex marriage or courtroom dramas following the death of a same sex partner. While planning from a legal and financial perspective has been made easier, there are still issues of wealth disparity, health matters, aging and age differences, and family of origin issues, not unlike those that heterosexual people must face, but always with a slight difference.
Especially for older gays and lesbians, the issues of healthcare and housing loom large. While there has been a growth of “LGBT friendly housing”, most assisted living facilities, nursing homes and retirement communities are still not welcoming to same sex couples. After a partner’s death, the surviving partner may be faced with diminished finances and the problem of finding new housing. Having to hide one’s past in a congregate living facility is a dreaded possibility.
Fortunately there are many estate planning attorneys who are by now well versed in and familiar with these issues, having worked with LGBT clients over decades of change. My own experience with many LGBT singles and couples, from young couples starting families to those with 50+ years of partnership, has provided many rewarding memories and learning experiences.
The CAVEAT is the same: Get your estate plans in place if you want to spare your loved ones difficult decisions about your care while you are alive but incapacitated; and unnecessary, long and costly procedures when you die.