Estate Planning Considerations for Same-Sex and LGBTQ+ Couples

Hundreds of LGBTQ events are occurring nationwide this month to celebrate and support the LGBTQ community. In recognition of Pride Month, we are sharing input about Wisconsin estate planning for LGBTQ+ individuals and couples.

Lesbian, gay, bisexual, or transgender individuals, whether married, unmarried, in a civil union, or single, need to do estate planning to protect themselves in a legal system that may not assure their intended wishes are followed.

The U.S. Supreme Court has held that same-sex marriages legal in one state are to be recognized as legal in all 50 states. This means that many legal protections in the estate planning area are now available for same-sex couples. For example, the automatic right to inherit certain property from your spouse, the right to make medical or financial decisions for each other, and related legal considerations should now apply to LGBTQ+ couples under Wisconsin law. ​

Whether you are married or not, it is best to create your own estate plan to assure your personal wishes are followed. This is equally true for heterosexual couples.
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Many LGBTQ couples are not married and do not have the legal protections marriage provides. For them, estate planning is critical to provide for their partners. Unmarried LGBTQ individuals, whether in a relationship or not, need estate planning documents in place to have their choices for financial or medical decisions while alive or their wishes for financial allocations on their death followed.

Recommended Estate Planning Considerations For LGBTQ+ Individuals Or Couples

3 Reasons Why Same-Sex Couples Need an Estate Plan by Attorney Lindsey A. Kujawa

1. A Will

A will spells out how you want your estate to pass on your death, though court oversight may be required. If you are unmarried and want your estate to pass to your partner, this is essential. State inheritance laws may not allow this to happen. You can name whomever you want to serve as the personal representative of your estate to implement your estate plan when you die. 
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You can set up trusts for minor beneficiaries or beneficiaries who need special conditions set on the receipt of their inheritance and name who will be the trustee to administer those assets for the benefit of the beneficiaries. You also should specify whom you would want to serve as guardian of your minor children if both you and your partner pass away. 

2. A Durable Power of Attorney for Finances

A Durable Power of Attorney is the legal document that gives someone you choose the power to act in your place if you are not able to act to manage your own business or financial affairs. You want to make sure this remains effective if you become incapacitated or incompetent.  ​

3. A Durable Power of Attorney for Health Care and Other End of Life Decision Making Documents

The Power of Attorney for Health Care spells out who can make medical decisions on your behalf if you are not able to do so yourself. 
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A Directive to Physicians (or Living Will) expresses your wishes for whether you want to be kept alive by artificial means if you are unconscious and in terminal condition and have no reasonable chance of recovery. A HIPAA release allows the person you designate to have access to your protected health information so the person making these medical decisions can have full medical information.

4. Review of All Possible Beneficiary Designations

You can have many assets pass directly to your partner or other intended beneficiary by their designation as beneficiary or by payable on death or transfer on death provisions. This is especially important on IRAs, 401(k) accounts, life insurance policies, and bank or investment accounts, which often comprise a large part of a person's estate. Be sure to add and update these designations to assist with out-of-court estate administration after your death.

5. Revocable Trust

A Revocable Trust is a document used to allow all of your assets to pass outside of a court upon your death. You would take ownership of items in the name of the Trust or list the Trust as a beneficiary on your assets (through the use of a Beneficiary or Transfer on Death designation). Once all of your assets are in your Trust, your trustee would disperse your assets with the directions laid out in the Trust, without the need for a court to approve of the directions. ​

Contact an Experienced Estate Planning Attorney Today

The estate planning attorneys at Hansen & Hildebrand, S.C. are happy to help you understand your options and take the necessary steps to make enforceable estate planning decisions. Whether you are married, in a same-sex relationship, or are an LGBTQ+ individual, contact us today to ensure your choices are honored.

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