Happy Pride Month!
Estate planning clients who are part of the LGBTQ community often face unique considerations when making their estate plans. In honor of pride month, here is a quick dive into some of these issues.
People in the queer community are more likely to want to disinherit family members, and these kinds of disinheritances can be done via a Will and/or a Trust. When you pass away without an estate plan, your assets pass according to a system called “intestacy” to your next of kin. Massachusetts’ intestacy law provides that some of your assets will pass to your parents, even if you are married, so long as you do not have children. It’s very common for queer people to not have children and want to disinherit their parents. An estate plan is needed to get this result.
On a similar note, many queer people, including those in long-term relationships, will choose not to marry at all. In order to provide for your partner in case of your death, an estate plan will need to be set in place. It’s also important to include your partner on your “incapacity” documents like powers of attorney and health care proxies. This will allow your partner to be the primary legal, financial, and medical decision-maker for you when you are incapacitated, instead of allowing the Court to appoint a decision-maker for you.
Married queer couples can benefit from estate planning too, of course, including estate tax planning which is important in a state like Massachusetts which imposes a separate state estate tax. Although same-sex marriages are currently protected under Massachusetts and federal law, it’s a good idea to include language in your estate plan that considers what would happen if your marriage is no longer considered valid. Such language can affirm that you wish for the documents to consider you a married couple, regardless of the state of the law on same-sex marriage.
Trans people also have a few unique considerations. Although you may go by a different name in your day-to-day life, your estate planning documents must include your present legal name to be valid. You can, however, include an “aka” after your legal name and list your preferred name. Alternatively, you can seek a legal name change with the court before creating your estate plan. You can also include language in your documents to ensure gender-affirming care when your named fiduciaries are acting on your behalf. A health care proxy can direct your agent to seek care that respects your pronouns and current gender-affirming care. If you wish to be buried upon death, you can include specific instruction in a Declaration as to Remains concerning the outfit, makeup, and hairstyle you wish your body to have.
Finally, a point regarding same-sex married couples who have children. When a child is born to a married couple, both spouses are presumed to be the child’s parents, regardless of the spouses’ genders. However, this legal presumption is not as strong or universally recognized as a legal determination of parentage. In places where same-sex marriage is not recognized, this legal presumption will also not be recognized. A work-around for this is something called a confirmatory adoption whereby the two parents adopt their own child. An adoption creates a one-to-one parent-to-child legal relationship that is recognized throughout the world and thus adds an additional protection. Many male same-sex couples will do an adoption as part of their surrogacy agreement, so confirmatory adoptions are most often used by female same-sex couples where one of the mothers carried the child herself.
I hope to see some of you at the Boston Pride for the People Festival and Parade this Saturday! https://www.bostonprideforthepeople.org/
Attorney Sean M. Downing is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of trust and estate planning, estate settlement, and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781-461-1020.