LGBTQ Estate Planning Concerns You Need to Consider

Planning for your estate in Pennsylvania is an important step that every family should consider to protect their assets and legacy for their loved ones.

The critical nature of this future planning is even more crucial for same-sex couples and LGBTQ families despite the Supreme Court’s decision in the Obergefell v. Hodges case of 2015.

With the recent legal recognition of same-sex marriage, considerable tax savings and estate tools have become available that were previously inaccessible. Still, couples in this category may face frustrating family situations regarding child guardianship, long-term care, and family members who may not accept their union.

Protect Your Wishes for Asset Distribution

Having a legally recognized estate plan in place is especially important for unmarried couples. Those in LGBTQ relationships or committed relationships need a will at a minimum. Should you or your partner die without a will in place (intestate), Pennsylvania intestacy laws will determine who should receive your estate.

This can be a disastrous outcome for many same-sex couples whose family members disapprove of the relationship. State intestate succession laws require these estate types to be divided among the decedent’s closest surviving family members. One’s surviving partner doesn’t fall under this umbrella and wouldn’t have the legal right to any assets and property left behind. A will helps LGBTQ couples avoid this scenario by giving instructions on distributing their estates to the probate court.

Don’t Rely on a Will Alone for End of Life Care

A will is a great starting point for protecting your wishes for the distribution of your assets and property, but same-sex couples residing in Pennsylvania need additional protections. Specifically, the ability to make vital medical and financial decisions on behalf of their loved one should they become incapacitated or unable to do so on their own. Same-sex spouses often find themselves fighting against their partner’s extended family in these situations. Consider the following advanced directives to avoid turning an already emotional circumstance into a bitter court battle.

Durable Power of Attorney
When planning your Pennsylvania estate plan, designating who will handle your financial affairs is essential should you become incapacitated or seriously ill.

Healthcare Power of Attorney
This power of attorney type allows you to empower your spouse or partner with authority to make critical healthcare decisions for you. For many same-sex couples, this ensures that any decisions made are by someone you trust if incapacitated or ill.

HIPAA Privacy Authorization
This is a frequently forgotten document that is essential to your designated healthcare power of attorney representative. These authorizations ensure your medical records are accessible, allow your partner to speak with your doctors, and help establish your current state of health regarding your estate.

Plan for Your Children’s Guardianship Needs

Another challenge same-sex parents face is child guardianship issues. Often, only one spouse or partner is the biological parent of children in the relationship or used adoption to expand their family. Regardless, without a will that specifies who should be the guardian of your children should you die or become incapacitated, the court will choose their guardian for you. When left to a judge, there is no guarantee your partner will receive custody.

This can lead to custody battles between your spouse and family over who should take care of your children. Prevent this emotionally traumatizing situation altogether by adopting your children if they are not yours biologically.

Don’t Forget to Review Your Real Estate Assets

Same-sex couples and spouses should pay special attention to how real estate ownership will be transferred when a partner passes. The state of Pennsylvania provides for two different avenues of joint ownership, which can make it easier to pass real estate on to your partner should you pass away:

Joint Tenancy
This is an ownership option where both you and your spouse or partner are listed as joint owners on a piece of real estate. Should you die, it would automatically transfer to the surviving owner, your partner. It’s important to note that Pennsylvania law requires joint owners to have equal shares in the property.

Tenancy by the Entirety
This acts in the same way as joint tenancy, except it is only available to married couples.

Trust Pennsylvania Estate Planning Professionals

Whether married or not, Pennsylvania couples should take all of the previously mentioned estate planning options seriously when determining what happens to their assets should they die or become incapacitated. This is even more important for same-sex relationships where children, property, and long-term health concerns are at issue. Working with a skilled Pennsylvania estate planning attorney familiar with LGBTQ families’ legal challenges is crucial when creating a legacy for your loved ones. Contact Antanavage Farbiarz, PLLC, to set up a consultation and learn how our services can help create an estate plan that benefits your family for generations to come.

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