You can take it from an estate planning attorney that estate planning may not be the most exciting topic, but it is a critical step for everyone to protect themselves and their loved ones. Here, we will explore estate planning through an LGBTQ+ lens while ensuring that the information provided applies to all individuals, regardless of their sexual orientation or gender identity. By showing how estate planning can address the unique needs and concerns of the LGBTQ+ community, I hope to make this often-overlooked and sometimes mundane topic more engaging and inclusive for everyone.

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By Ethan Johnson Attorney, SW&L Attorneys Understanding Historical Context and the Need for LGBTQ+ Estate Planning Power of Attorney Healthcare Directives Last Will and Testament Trusts SW&L Attorneys

By Ethan Johnson

Attorney, SW&L Attorneys

Ethan is an associate attorney at SW&L and joined the firm in 2022. He practices in North Dakota and Minnesota, focusing on estate planning, probate, and guardianship and conservatorships. Ethan helps his clients by taking into account their individual circumstances and utilizing the legal tools available to draft a comprehensive estate plan that best serves the client’s interests.

Understanding Historical Context and the Need for LGBTQ+ Estate Planning

The LGBTQ+ community has faced a long and challenging journey toward achieving equality and recognition. Historical struggles for civil rights, such as marriage equality and non-discrimination protections, have brought about significant legal changes. In 2015, the United States Supreme Court legalized same-sex marriage in all 50 states, with its opinion in Obergefell v. Hodges. In 2020, the Supreme Court held that gay and transgender people are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964. Bostock v. Clayton County. The historic Supreme Court rulings of Obergefell and Bostock undoubtedly marked significant milestones in the fight for LGBTQ+ rights, ensuring marriage equality and workplace protections. However, the fragility of these victories should not be overlooked. The interpretation of constitutional rights can change, evolve, and thus, subsequent court decisions may impact the stability of these fundamental rights and protections.

There has also been progress on the legislative front for the LGBTQ+ community. In 1996, Congress passed the Defense of Marriage Act (DOMA). It defined marriage as a legal union exclusively between one man and one woman for federal purposes. The main purpose of DOMA was to deny federal recognition and benefits to same-sex couples who were legally married in their respective states. In December of 2022, congress passed the Respect for Marriage Act (RFMA), which repealed the Defense of Marriage Act, and required federal recognition of same-sex marriages. However, it does not guarantee complete protection. The RFMA’s impact is contingent upon Obergefell remaining in effect. Should the Supreme Court overturn Obergefell, as Justice Clarence Thomas suggested in his concurrence in Dobbs v. Jackson Women’s Health Org., the RFMA would not prevent individual states, like North Dakota, which defines marriage as a civil contract between a man and woman, from denying marriage licenses to same-sex couples, potentially leaving their legal recognition in limbo.

In light of these potential challenges, it is crucial for LGBTQ+ individuals, including young people, to execute and get counsel on legal documents such as a Power of Attorney, Healthcare Directive, Wills, and Trusts to protect themselves and the ones they love no matter what happens in politics, the courts, or the legislature.

Power of Attorney

As a young attorney, I often encounter questions from young individuals who wonder if they need an estate plan at their age. While it is true that estate planning typically becomes more comprehensive as life progresses, there is one crucial document that everyone should have once they turn 18: a power of attorney.

A power of attorney is a vital legal document that empowers someone else to act on your behalf in financial, legal, or personal matters. This appointed individual possesses the authority to make decisions and represent your interests when you are unable or unwilling to do so yourself. In situations where incapacitation occurs, the power of attorney document can be a crucial tool to bypass the need for guardianship and conservatorships. It also allows you to express your preferences for who should act as your guardian and conservator if the need arises. The significance of this document becomes even more evident when considering the experiences of LGBTQ+ individuals.

Consider the case of In re Guardianship of Kowalski, which unfolded in Minnesota in 1991. The focus was on a lesbian couple, Sharon Kowalski and her partner, who had been living together for four years, exchanged rings, and named each other as beneficiaries on their life insurance policies. Tragically, Sharon was involved in an accident that left her incapacitated. Sharon’s father and partner both petitioned to be appointed as her Guardian and Conservator. Ultimately, Sharon’s father prevailed. Being at odds with Sharon’s identity and lifestyle, he terminated her partner’s visitation rights, resulting in years of separation between them. Fortunately, through the appeals process, Sharon’s partner eventually became her Guardian and Conservator, marking a significant victory for LGBTQ+ rights.

Sharon’s case exemplifies the critical importance of a power of attorney document for LGBTQ+ individuals. When someone comes out and faces non-acceptance from their family, there is a risk of attempts to alter their way of life. A power of attorney can serve as a protective measure. Having a power of attorney in place allows individuals to retain control over their lives even if they become incapacitated. It acts as a shield to protect their identity and ensure their wishes are respected, despite any opposition they may encounter from others. Regardless of age, gender, or sexual orientation, a power of attorney is a fundamental document that provides essential protection and support in various situations.

Healthcare Directives

A healthcare directive is a critical legal document that serves to express an individual’s wishes regarding medical treatment when they are unable to communicate or make decisions. It provides guidance to healthcare providers and loved ones, ensuring that the person’s preferences for life-sustaining measures, resuscitation, life support, and organ donation are known and honored.

Healthcare directives hold significance for everyone. These documents are vital in empowering individuals to advocate for their healthcare choices and maintain control over their well-being when they cannot. In situations where individuals may face discrimination, lack of understanding, or unique healthcare needs, such as transgender individuals seeking gender-affirming treatments, a healthcare directive becomes particularly essential. It allows individuals to clearly communicate their desires regarding specialized treatments and assert their rights, ensuring that their medical care aligns with their personal values, identity, and overall healthcare goals. By having a healthcare directive, individuals can proactively assert their autonomy and protect their interests, fostering a sense of empowerment and peace of mind in tumultuous medical circumstances.

Last Will and Testament

A last will and testament, or will, holds significant importance as a legal document that allows individuals to outline their desired asset distribution and provide instructions for the care of minor children, if applicable, upon their death. It ensures that their wishes are respected and serves as a guiding document for the welfare of their loved ones.

The significance of a will extends to same-sex couples and those with children, offering crucial protection and clarity in asset preservation, inheritance rights, and beneficiary designations. As mentioned earlier, same-sex couples may encounter legal challenges and a potential lack of automatic recognition of their relationships. Without a will in place, the surviving partner in such cases might not receive automatic inheritance rights. Intestacy laws, which dictate asset distribution in the absence of a will, may not acknowledge the surviving partner as an eligible heir. This situation can leave the surviving partner financially vulnerable, and without the resources they had built together. Additionally, the absence of a will can limit the surviving partner’s authority to make decisions regarding the deceased partner’s estate, healthcare, and funeral arrangements.

Same-sex couples face a unique challenge when it comes to having biological children through traditional means. Since reproduction between two individuals of the same sex is not possible without assistance, such as surrogacy or assisted reproductive technologies, there is often only one biological tie to the child. This can create an interesting scenario in the unfortunate event that the biological parent passes away. In cases where no formal adoption has taken place, the assumption of parental rights by the surviving partner may not be automatic, as state laws can differ. To safeguard the well-being and future of the child, a guardianship provision in a will becomes crucial. By including such a provision, the surviving partner can ensure that they are granted guardianship and parental rights over the child, providing them with the necessary legal protections and rights in such circumstances.

By having a last will and testament, same-sex couples and partners can assert their rights, safeguard their interests, and ensure their wishes are fulfilled, irrespective of the legal recognition of their relationship or marriage.

Trusts

A trust is a legal entity created to hold and manage assets for the benefit of beneficiaries. One common type of trust is a revocable living trust, which is created during the grantor’s lifetime and can be modified or revoked as desired. In a revocable living trust, the grantor(s) transfers ownership of assets into the trust, designates themselves as the initial trustee, and names beneficiaries who will receive the assets upon their passing. The grantor(s) retains control over the trust during their lifetime and can manage the assets held within.

Revocable living trusts are particularly valuable estate planning tools for couples, including LGBTQ+ couples, as they provide various benefits.

Firstly, a revocable living trust serves as an avenue for couples to own property together. By placing assets into the trust, both partners can have joint ownership and management of shared property, ensuring equal control and rights over those assets. This arrangement can be crucial for protecting both partners’ interests and financial well-being, especially in cases where legal recognition or marital status may vary.

Moreover, revocable living trusts offer a seamless and private transfer of assets in the event of one partner’s passing. Assets held within the trust do not go through the probate process, which is the legal procedure for distributing a deceased individual’s assets. By avoiding probate, the trust enables the assets to pass directly to the named beneficiaries without court involvement or public disclosure.

In conclusion, estate planning is essential for people from all walks of life. This guide highlighted some of the unique challenges and concerns the LGBTQ+ community faces while hopefully ensuring that the information provided was applicable to all individuals. Regardless of the ever-changing legal landscape, estate planning is a powerful tool for individuals to secure their future, preserve their legacies, and ensure the well-being of their chosen family.