by Mary Piasta
Our firm stance is that people are people and that in general estate planning is the same for all families.
Dying without a will or trust, or even a poorly written one also means it is subject to attack through consternation rules. For LGBTQ people, especially this means that someone who does not like where you are leaving property can protest for various reasons. (For example, they were forgotten, they have the right to property, etc.).
An estate planning consultation always in California begins with issues of legality of marriage, parenting rights and property rights. While the general laws are no different for LGBTQ families, the technical side of estate planning is.
Estate planning consultation begins with looking at the goals of the family and ensuring that the legal directives are in place to achieve those goals. If not, then specific documents are custom tailored to do so. During this process, learning about extended family dynamics becomes important.
LGBTQ relationships became legal in 2015 by the decision of the Supreme Court Case of Obergefell Versus Hodges. While various forces seek to place obstacles in the way of LGBTQ family situations, it is important to note that non-traditional family situations have been increasing. The long-held ideal of a traditional nuclear family unit of more than 50 years ago has faded.
According to Pew Research Center and others, four out of 10 births in the U.S. today occur to women who are not married or who live with a non-marital partner. Also many household situations are made up of couples that divorce and then remarry – which can include LGBTQ relationships.
Today’s households do not have one dominant form. According to Pew and others the living and relationship situations of households throughout the nation are diverse.
Guardianship of children if a parent dies can become an issue. As with progressive families, sometimes children are not adopted fully by both parents. Thus, if members of an extended family have opinions about who should raise the child, those people can seek to have a court determine what is called ‘guardianship rights.’ Thus, a lack of legal clarity over rights can cloud the clarity of one’s estate later. Working to anticipate this type of issue in your will and estate plan can mean your child is parented by the person you want.
Without clear legal directives empowering your partner to make health and financial decisions for you means they may be cut out of the information loop and other individuals who you would not want to make decisions would do so. This is not a malicious thing. Yet, the doctors and financial professionals have obligations to follow. Unless there are clear legal directives in properly executed documents, there is room to question. Lack of direction and instability of an estate or will is not an issue anyone wants to deal with at those critical times. Property rights like guardianships require specific legal documentation and terms of art on deeds.
Another area worthy of mention concerns end of life wishes. At this point many people have opinions. The way to ensure your wishes on burial and celebrations are carried out is to include that in your estate plan.
The tools in a general estate plan include one to empower a person to make decisions about health care if one cannot about their health. This is referred to as a ‘health care directive.’ This is a similar document to a power of attorney (POA) but it is regarding decisions over finances and medical documents detailing post death wishes on guardianship (through a will) and property transfer (by way of a trust).
A living trust is something that you can maintain, adjust and strengthen while you are alive. Keeping everything in your will and trust up to date and in order is one way to ensure your property and wishes are upheld a the time of your death. And most importantly, that the arrangement of your household, family circumstance and empowerment of LGBTQ relationships are kept intact.
For more information contact Mary Piasta, esquire of Hauser, Valluszo & Piasta, LLP, Sonoma, CA
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