Marriage confers a lot of benefits between you and your spouse. It allows your spouse to receive social security benefits when you pass away, confers immigration right to them, and can carry tax benefits. From private industry, your spouse may be added to your health insurance and you may qualify for FMLA if you need to care for your spouse. These rights cannot be conferred via an estate plan. But rights like visiting your spouse in the hospital, inheriting from your spouse, and having the power to make medical decisions for your spouse can be.
In a world where rights can feel uncertain – especially with a Second Trump Administration looming – estate planning is becoming increasingly important for the LGBTQ+ community. While an estate plan cannot replace all the benefits of marriage, a well-crafted estate plan can replicate may of marriage’s key benefits.
- Inheritance: In all states, if a married person passes away without a Last Will and Testament, their assets will pass via the state’s descent and distribution statute. This statute always has a carve out for the surviving spouse (the amount may differ by state). If an individual passes away, their assets Will go to their closest living relative (parents first, then siblings, and on down the line). If same-sex marriages are no longer honored, naming your spouse in your ill or trust can ensure they receive what is rightfully theirs and what they would receive if your marriage was honored. If you are not married, you may still want an estate plan if you are estranged from any relatives to ensure they do not inherit your assets. It can also be a place to give back to different Queer non-profits you donate to during your lifetime.
- Health Care Decisions: Most states provide that the closest living relative can make health care decisions for you if you are unable to do so. If you have a health care power of attorney, the person designated on the document takes precedent over the statute. Meaning, having a health care power of attorney will ensure the person you want to make decisions for you (i.e. your spouse) will have the authority to do so. Additionally, in the health care power of attorney document you can make your wish to continue gender-affirming treatments known to your health care provider. This would remove any doubt of your intentions for health care providers and work to preserve your overall wellbeing.
- Hospital Visitation: Most hospitals will allow family members, based on the definition provided by state law, to visit you while you are in the hospital. If your marriage or your children are not recognized by law, having instructions done in advance on who is permitted to visit you in the hospital becomes paramount. You can include all the individuals you want to visit you or list one person you trust to make those decisions. Having instructions done in advance and can mitigate any issues at the hospital.
- Advance Directive: In addition to a health care power of attorney, an advance directive documents relates to your health. The directive kicks in once you are in a terminal condition. If you are unable to decide whether to continue care your care provider will look to you closest living relative as defined by statute. Your closest living relative would be asked to decide whether to continue live-saving care or turning to palliative care. If same-sex marriage is replead, it would not necessarily be your spouse. By signing an advance directive, you control what is done AND who is contacted if you are in a terminable condition.
- Beneficiaries: Almost every financial instrument and real estate right can be transferred to a beneficiary, by naming the beneficiary in an instruction or affidavit. Designating your spouse as a beneficiary to retirement plans, real estate, vehicles, investment accounts, and bank accounts would act similarly to surviving spouse rights.
If you have questions about how to preserve your marriage, it is imperative you contact a queer-owned or queer-friendly estate planning attorney to assist you.
