GLBT Estate Planning Frequently Asked Questions
- Can my partner handle my financial affairs if I am incapacitated?
- Can my partner make medical decisions for me if I'm sick?
- How can I be sure that I will be allowed to visit my partner in the hospital or assisted living facility?
- Can I make decisions about my partner's remains?
- Will my partner be appointed guardian of my minor child?
- Is there a tax if I give some of my property to my partner?
- Are my estate planning documents a matter of public record?
- Does same-sex marriage, domestic partnership, or civil union provide all the benefits of heterosexual marriage?
- Do same-sex couples have to plan more than heterosexual couples do?
- Is a Living Trust a good idea for a GLBT person?
Q: Can my partner handle my financial affairs if I am incapacitated?
A: No, you have to do estate planning in order to allow your partner to have that authority. Specifically, by designating your partner as agent under a General Durable (Financial) Power of Attorney, he or she can make decisions on your behalf regarding financial matters.
Q: Can my partner make medical decisions for me if I'm sick?
A: No. Unless you are in a registered domestic partnership, civil union, or same-sex marriage, your partner cannot make those decisions for you. Unless you do estate planning, state law allows your family of origin to make such decisions. However, you can override state law and give your partner the authority to make such decisions by signing a Health Care Power of Attorney. With such a document, when you are unable to make your own medical decisions, your partner can step in and speak for you. Further, this document will designate your partner as your choice to be guardian for you if one needs to be appointed. Without such a designation, your family of origin would have priority for such an appointment.
Q: How can I be sure that I will be allowed to visit my partner in the hospital or assisted living facility?
A: If you are in a state that recognizes same-sex marriage, civil unions, or domestic partnerships and you register as such, proof of such registration would be sufficient. Otherwise, you would need to have your partner designate you as agent under their Health Care Power of Attorney. The agent also can limit other visitors.
Q: Can I make decisions about my partner's remains?
A: No. Provided you're not in a registered relationship described above, state law allows your partner's family of origin rather than you to make those decisions. However, if your partner designates you as agent under their Health Care Power of Attorney, then you would be able to make such decisions.
Q: Will my partner be appointed guardian of my minor child?
A: Unless your partner has adopted your minor children, a court would decide what would be in the child's best interest. Typically, your family of origin and that of the child's other biological parent are given preference by the court. However, in your last Will, you can nominate your partner to be the guardian for your minor child. The court will then give weight to your suggestion while weighing what is in the child's best interest.
Q: Is there a tax if I give some of my property to my partner?
A: Maybe. Federal law allows heterosexual married couples to give each other an unlimited amount of property without gift tax. Unfortunately, federal law does not recognize same-sex marriage. Each person gets to give up to his or her tax exclusion during their lifetime to anyone they want. However, any use during lifetime reduces the amount available for transfers at death. In addition, anyone can make a gift to any other person, domestic partner or not, of $13,000 per year per individual without gift tax and without reducing his or her estate tax exclusion.
Q: Are my estate planning documents a matter of public record?
A: Only your Will is a matter of public record. Your Revocable Living Trust and your Powers of Attorney are not public. Therefore, by using a Revocable Living Trust you can maintain the privacy of your wishes. Prying eyes of co-workers and neighbors will not have access to the details of your estate plan.
Q: Does same-sex marriage, domestic partnership, or civil union provide all the benefits of heterosexual marriage?
A: No. These relationships affect state law rights and responsibilities only and are not recognized by the federal government. As a result, same-sex couples cannot file federal income tax returns jointly, do not qualify for an estate tax marital deduction, cannot get social security survivorship benefits, and cannot get any other benefits under federal law, such as immigration.
Q: Do same-sex couples have to plan more than heterosexual couples do?
A: Yes. The default in state law, called "intestacy," is designed with heterosexual couples in mind. If a heterosexual couple dies without any estate plan, the survivor will get a good portion of the assets left behind. However, unless you are in a state that legally recognizes same-sex marriage, domestic partnership, or civil union and you have registered as such, the survivor would get nothing. Instead, the family of origin of the partner who died would get anything in that partner's name, including bank accounts, real estate, etc.
Q: Is a Living Trust a good idea for a GLBT person?
A: Yes. If you're part of the Gay, Lesbian, Bisexual, and Transgender community, a Living Trust offers protection for your estate, as well. It will completely eliminate a living probate, a death probate and you can pass $5 million in 2011 or 2012. The amount reverts to $1 million in 2013 and thereafter. Further, it allows you to override the laws that fail to recognize the importance of your domestic partnership.