In Florida, estate planning for same-sex couples is the process of customizing traditional estate planning documents for the unique needs of LGBT people and their families.

For unmarried couples, a comprehensive estate plan lets couples protect each other with or without the benefits afforded by marriage. Sometimes gay and lesbian couples will think all they need is a will in case one of them dies. But a will alone will not effectively protect the surviving spouse if one partner dies, and for couples raising a child, it may not adequately protect the child. Plus, it does nothing if one of the partners were to become incapacitated.

For our LGBT estate planning clients, we recommend five key documents:

  • Last Will and Testament
  • Living Will
  • Designation of Health Care Surrogate
  • Durable power of attorney
  • Declaration of Pre-need Guardian

Will

A will protects the surviving partner and ensures that they are taken care of.

Living Will

A living will lets you state how you should be taken care of if you become incapacitated. It lets you decide what sort of life support you wish to be used under certain circumstances. Without a living will, the amount of life support used can be a contentious issue for family members.

Designation of Health Care Surrogate

A designation of health care surrogate lets someone designate their same-sex partner or whomever else to give informed consent for medical treatment and surgical and diagnostic procedures.

Power of Attorney

A power of attorney lets one person act on behalf of another. The specific actions the other person may take depends on the language of the power of attorney document. For gay couples, it is critical to execute both a financial and health care power of attorney in favor of each partner. Otherwise, the property of one partner could be completely out of the hands of the other if the first becomes incapacitated or otherwise unavailable.

LGBT estate planning

Declaration of Pre-Need Guardian

A declaration of pre-need guardian lets you state who should be your guardian if a court determines you need one. This is critical for unmarried same-sex couples because, without this declaration, you risk the court passing over your same-sex partner and designating someone else to be your guardian if guardianship ever becomes necessary. It could even be a family member hostile to your same-sex relationship.

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Benefits of Estate Planning for Same-Sex Couples

Despite significant advancements in legal recognition for same-sex relationships, such as the legalization of same-sex marriage, there are still specific benefits of estate planning for same-sex couples:

  1. Protection of Property Rights: Through estate planning, you can ensure your property and assets are distributed as you wish after death. Without an estate plan, state intestacy laws determine who inherits your property, which may not always align with your desires.
  2. Securing Your Partner’s Future: Estate planning allows you to financially support your partner after death. You can specify how much of your estate you want your partner to inherit and even set up trusts for their benefit.
  3. Ensuring Decision-Making Authority: In your estate plan, you can designate your partner as your healthcare proxy and give them the power to make medical decisions if you become incapacitated. This is especially important when the family may not recognize or respect the relationship.
  4. Designation of Guardianship: If you have minor children, your estate plan can designate your partner as the legal guardian should you pass away, ensuring your children remain with your partner.
  5. Tax Planning: Proper estate planning can help minimize estate and inheritance taxes. You can structure your estate plan to maximize tax benefits and ensure that as much of your estate as possible goes to your loved ones.
  6. Avoiding Probate: Estate planning tools such as living trusts can help your estate avoid probate, which can be a lengthy and costly court process.
  7. Peace of Mind: An estate plan can provide significant peace of mind. You can rest easier knowing your wishes will be honored and your partner and children will be cared for after your death.
  8. Preventing Disputes: A well-executed estate plan can help prevent potential disputes or challenges among family members after your death.
Gideon Alper

About the Author

Gideon Alper is an attorney who specializes in asset protection planning. He graduated with honors from Emory University Law School and has over 15 years of legal experience.

Gideon has helped thousands of clients protect their assets from creditors. Before private practice, he represented the federal government while working for the IRS Office of Chief Counsel.

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