LGBT+ Estate Planning and Wills

LGBT+ folks have fought for significant progress over the last decades. Nowadays, although still culturally taboo to some people, adoption is not just limited to opposite-sex couples. This is of course a lot different than how it was back in the day. Now, while the law has changed regarding marriage and adoption, there are still a few things that need to be discussed so that LGBT+ couples and parents don’t face tough situations. LGBT+ couples need to be attentive of properly handling their estates and wills. This is where estate planning comes in.

What is Estate Planning?

Preparing for your own or a loved one’s passing is what is known as estate planning. This means protecting and managing assets, property, and the settlement of an estate. An estate could consist of property like a house, a car, or maybe valuable items. It also includes stocks, assets, and savings. If you want your estate to be properly distributed or managed in the event of death, then hammering out all the details with an estate lawyer is crucial. 

Estate planning also involves legally giving a loved one certain rights for certain situations. We’ll discuss these in our 3 essential LGBT+ estate planning tips below. 

Tip #1: Preparing for Estate Planning

Giving your partner, spouse, or even a child the authority to make a decision on your behalf is an important first step in sorting out your estate. People often relate this to Power of Attorney (POA) but there are other legal avenues you should know about. Here’s a quick overview of different types of POA:

• POA for finances:

  • An agent has the power to make decisions relating to their partner or spouse’s finances. They have access to their assets in the event they’re incapacitated. 

• POA for healthcare:

  • Like the POA mentioned above this power of attorney is for when an agent (spouse/partner) has to act on your behalf to make healthcare decisions. 

Powers of Attorney are not the only legal powers than can be established for a situation in which a person is incapacitated. There are also other documents that need to be discussed when planning for the future. Here’s a short list:

• Georgia Advance Directive for Health Care (GADHC): 

  • The GADHC permits an individual to detail their preferences for medical treatment if they are in a permanent state of unconsciousness, persistent vegetative state, or is dying from an incurable disease. This document further permits the individual to designate another person as their agent in order to make medical decisions for the incapacitated individual. This document will instruct your health care providers and all other pertinent parties that the person you appointed as your agent is the person you want making care decisions for you, including the decision to remove you from life support, and handling your funeral arrangement.

• HIPAA:

  • Establishing this authorization gives anyone you designate full access to your medical records and health condition. 

• Living Will:

  • A living will gives instructions to healthcare professionals about whether or not you want life-sustaining intervention in the event of a terminal condition or are in a persistent vegetative state. 

Tip #2: Establishing Guardianship over Minor Children

In the event of an incapacitation or death naming, a guardian over minor children is an important step to take, especially for LGBT+ parents. Your partner or spouse might already have legal rights over your children but it’s important to also name a secondary or “back up” guardian. Without these safeguards your children, if minors at the time of the event, might end up at the hands of the court or family members you don’t necessarily see fit as guardians. 

Tip #3: Preserving Assets

Working with an attorney to sort out all the details, both big and small, of an estate plan is important. Not just because they can properly guide you towards what the most secure plan is, but also because they can advise about how to best preserve assets and property. 

A will and a trust are two ways to pass along inheritance and protect assets. There are pros and cons to both options. Wills are straightforward and more economical but they can be subject to probate. Trusts on the other hand protect assets and property better but they can be more expensive and complicated. Whichever option you chose you should consult an attorney with experience handling these sensitive and complex matters.

The Marital Standard of Living & Length of marriage

Alimony and Spousal Support are considered to be the same thing, and often the terms are used interchangeably.

The Marital Standard of Living & Length of marriage are the first two factors listen in O.C.G.A. 19-6-5 that the Court considers when deciding on an award of alimony. Typically speaking, the longer the marriage, the more weight the court will give to any considerations of alimony. However, there is no legally specified minimum amount of a time a marriage has to last for alimony to be considered. 

The ‘marital standard of living’ is the level of comfort you enjoyed while married. This comfort is of course not emotional, it is instead material and financial. Having a high standard of living while married does not entitle either spouse to alimony. Alimony is meant as aid to keep a basic standard of living and ensure all needs are covered. Presenting in front of a judge what you consider to be reasonable needs in order to keep a similar lifestyle is where a strong divorce lawyer comes in. 

 

Age, Physical, and Emotional State

Age is an important factor when arguing in favor of alimony. As we mentioned above, alimony is about one financially disadvantaged party in a marriage having sufficient funds to sustain themselves independently. Age comes into play because a person’s employability is often directly tied to their age. 

Health and mental state plays part of this same logic. If one of the spouses in a divorce suffers from a chronic illness or some form of mental health issue then their considerations for alimony could be stronger. 

 

Financial State of both Parties

This factor plays a huge role in whether or not alimony (and how much) is awarded. Needs (and ability) is what determine whether one party pays the other party alimony. The more resources one spouse has, the higher the likelihood they will pay alimony to the spouse with less resources. Resources include income, property, assets, retirement accounts, and more. 

 

Employment After Divorce

Employability is also one of the things a judge looks for when making an alimony decision. Say for example you married young and became a homemaker or were financially supported by your ex-spouse. Being out of the workforce for a long time might hamper your chances at employability. This is where temporary alimony might come into play. A judge might award this until one party is able to become employed or complete training or education with the goal of becoming employed. 

 

Conditions, Contributions, and other relevant factors

This factor takes into account both monetary and non-monetary contributions both spouses made to the marriage. The court may look at these contributions when considering the needs of either spouse once the divorce is complete. Non-monetary contributions might be for example child-raising and homemaking. They go much further than that though. Making these choices during a marriage can lead to a diminished capacity for employment if the marriage comes to an end. This will raise the question of alimony in court.

The court will also examine the condition of both parties and any other relevant factors towards determining alimony. Your divorce attorney can determine which other relevant factors to present before the court. They can also help demonstrate the condition of both parties.