Estate Planning That Works for the LGBTQ+ Community

If you are part of the LGBTQ+ community, your estate planning may need extra considerations. Not because your relationships are more complicated, but because in many ways, the legal system has not caught up to modern families.

Why Standard Estate Planning May Fall Short
Many estate planning forms have basic assumptions baked in, like assuming the testator is straight and cisgender. Language like “husband and wife” and “natural children” may signal that you are working with non-inclusive forms. Gender neutral words such as “spouse” or “partner” instead of husband or wife, and “child,” “grandchild,” or “sibling” instead of the gendered counterparts are an easy and inclusive way to refer to you and your family.

You may also need your attorney to create supplementary documents like letters of instruction that explain relationships and wishes that might not be obvious from standard legal documents alone.

Some key points to discuss with your estate planning attorney include:
• Who are the people I want to make medical decisions if I cannot make them?
• Are there family members who should not have access to information about my health or finances?
• Who do I want to raise my kids, and do those people currently have a legal relationship with my children?

The people you choose for these roles may not be your legal family, but your chosen family. A solid estate plan will make sure your wishes are known and include provisions that allow your chosen people to enforce those wishes in court, if necessary.

Healthcare Decisions Deserve Extra Attention
In a medical emergency, you may not be able to make healthcare decisions for yourself. Having a Medical Power of Attorney and an Advanced Healthcare Directive is critical in ensuring that you choose the person in charge to make medical decisions. This is especially true for people who are not married. This means:

• Being very specific about who can make decisions
• Including backup decision-makers in case your first choice is not available
• Considering whether you want certain family members excluded from medical information
• Thinking about LGBTQ+-specific medical needs and preferences

Special Consideration for Transgender and Nonbinary Community
Your attorney should be able to prepare an estate plan for you that factors in your choice of name, preferred pronouns, and expression of gender identity where appropriate. Sometimes your legal documents may reflect a different name or gender identity than your preferred name and gender expression. New Jersey has streamlined the name change and gender marker process for birth certificates, which makes it easier to obtain identification documents in your preferred name and gender. An experienced attorney will help you with these processes, so that your Will, Power of Attorney and Medical Directive reflect who you are.

The Bottom Line
Estate planning is never one-size-fits-all. Especially for members of the LGBTQ+ community, their estate plan should protect the people most important to them. It should use language that reflects their goals and anticipates the challenges they may face.

Don’t settle for cookie-cutter planning that does not work for your life. Make sure your legal documents reflect your wishes and your situation, with an attorney who works with and understands you.

Melanie M. Levan at Earp Cohn P.C. has been mindfully helping individuals and families with estate planning for over a decade. Her prior volunteer work with The Trevor Project gives her additional insight into the unique challenges facing LGBTQ+ youth and families. Contact her for a consultation today.