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  • Writer's pictureNicole J. Zuvich

What should elder LGBTQ+ know when estate planning?

Updated: Sep 27, 2022

For many greying LGBTQ+ families, they may have had marriage ceremonies, but never actually become legally married. After all, legal marriage was only available in the U.S. in 2015. Though, for most aspects of their unmarried life, the law may still treat them as strangers.

Basic forms: a will

For greying LGBTQ+ couples that have lived together for decades, estate planning can be complicated, but it is essential. For example, ownership of assets is stated and inheritance applies only to blood and marriage, so for spouses that are not married, if one spouse dies, the other spouse will only have access to those assets where that spouse is specifically listed as an owner. This could be a joint bank account or a house where title is in both spouse’s names. However, for all other assets, the surviving spouse will likely not have a claim. In practice, this means that if the couple bought a car together, but only one spouse’s name is on the title, and that spouse passes away, ownership of that car will pass to that spouse’s legal heirs. This means that if that spouse has a child, ownership of that car could be vested in the child.

This is why having a will is so important. A will, or a last will and testament, changes how assets are distributed. It gives the drafter control of which assets go to who. Of course, one will still have to go through probate to effectuate the will, but it will at least, ensure that one’s spouse will be treated like a spouse, even if a legal marriage never occurred.

Durable power of attorney

These financial issues do not just occur at death though, they could also pop up if one becomes incapacitated or is unable to make their own decisions. For an unmarried spouse, they will have no ability to access any non-joint accounts or make any financial decisions on behalf of their incapacitated spouse. Instead, that will fall to another family member.

Through a durable power of attorney though, the not-incapacitated spouse can be empowered to make financial decisions and access non-joint accounts. This will allow that spouse to pay bills and access funds as needed, like for medical or hospice care.

Health-care power of attorney

A health-care power of attorney or health-care proxy acts like a durable power of attorney, except it is for medical decisions. It empowers the not-incapacitated spouse to make medical decisions for their incapacitated spouse. And, through a living will, the incapacitated spouse can outline their healthcare wishes as well. Of course, the first step for Garden City and Babylon, New York (Hempstead, Nassau and Suffolk County), residents is to contact an attorney.

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