Important Legal Documents for LGBTQ+ Couples

Same-sex married couples and LGBTQ+ people are justly concerned that the current trend of state laws and federal edicts may affect their marriage or their families. In an uncertain legal and economic climate, families want to know how to protect their legal rights. And ensure their loved ones have the same protection when they are gone.

There are a number of steps you can take to protect yourself, your partner, and your children. You can complete some of these legal documents yourself using online templates. Others may require input from attorneys or other legal professionals. The laws vary in each state, so contact a local attorney with any questions or concerns about your particular legal matter.

LGBTQ Marriage Rights

The U.S. Supreme Court's decision in Obergefell v. Hodges (2015) held that marriage is a fundamental right that extends to same-sex partners as well as heterosexual couples. The decision also held that laws banning same-sex marriages were unconstitutional.

It is unclear what would happen to existing same-sex marriages if the Supreme Court overturned Obergefell. Currently, 25 states have same-sex marriage bans still on the books. Overturning Obergefell could reactivate many of these laws.

“Undoing” a legal marriage is not as simple as passing a federal law since state laws regulate marriage. Federal law could limit access to Social Security, Medicare benefits, and some tax rights.

Now is the time to begin planning for the future before more changes occur.

Power of Attorney Documents

A power of attorney (POA) is a legal document that grants someone (the “agent”) to act on your (the “principal’s” )behalf. A POA gives the agent all the authority described in the document.

The principal may give the agent broad powers to act on their behalf or narrowly restrict their ability to act. A POA can let LGBTQ couples act for one another legally in the event that the law invalidates their marriage or domestic partnership.

Types of POAs:

• General POAs give the agent authority over most financial and legal matters. A general POA makes the agent the principal’s proxy unless the principal specifically revokes the power.
• Limited POAs restrict the agent’s authority to a particular act or time period. For instance, a limited POA might let the agent sign a document for the principal.
• Durable POAs remain in force during the principal's incapacity. Durable POAs are not the same as medical powers of attorney but they let the agent continue making other legal and financial decisions.
• Springing POAs become active when a particular event occurs. For example, it might go into effect if the principal becomes seriously incapacitated or leaves the country unexpectedly.
• Medical POAs allow the agent to make health care decisions for the principal. We’ll discuss those in more detail below.

LGBTQ+ couples should review the unique challenges of their situation with their lawyer before drafting a power of attorney.

Financial and Estate Planning

Most couples think of “financial planning” in terms of future plans and what will happen when one of them dies. But your financial plans should begin before that with legal protections for existing bank accounts, insurance policies, and other shared accounts.

Below are a few legal and financial issues to consider now:

• Review domestic partnerships and civil unions. Pre-2015, couples traveled the country, registering domestic partnerships in states that recognized them. A few states, such as Washington, converted these partnerships into legal marriage by law. Double-check that you’re not accidentally married to some long-forgotten partner from the past.
• Confirm the names on deeds and titles. You should title all real estate in both names as “joint tenants with right of survivorship.” This ensures that the surviving spouse receives the property immediately.
• Make sure both partners’ names appear on insurance policies, bank accounts, and life insurance. Update beneficiary designations on life insurance policies and other documents whenever you or your partner change jobs. It’s easy to forget this step, but insurance goes to the named beneficiary, not the surviving partner.

Consider naming one another as your financial power of attorney. A financial power of attorney gives the person the legal right to act as your agent in financial matters. An FPOA lets the agent manage the other person’s financial affairs if they are unable to do so. Since the FPOA gives your agent the right to make financial decisions unrelated to any marital relationship, marital laws do not affect it.

Estate Planning

Estate planning covers everything from your last will and testament to final decisions for your pets. Everyone benefits from the peace of mind that getting your estate in order brings. With marriage equality on uncertain grounds, LGBTQ+ families should see that their affairs are in place.

Wills

A will (sometimes called a “last will and testament”) is a document that defines how you want your assets distributed after you die. Your will names an executor who is responsible for paying estate taxes and creditors and giving your beneficiaries the property you want them to have.

In most states, the surviving spouse automatically receives any marital property. To avoid possible issues, update your will to explicitly name your spouse as a beneficiary with full inheritance rights. An estate planning attorney can advise you on how to word this.

If your spouse or beneficiaries are transgender, you may need to place additional clauses in your will. Some states and the federal government are considering laws that would confine gender identity to “male and female.”

It is not clear if these laws will stand. It's unclear whether these states would consider gifts to "Female Child" invalid if "Female Child" is now "Male Child."

Consider using both names and genders ("I bequeath to daughter Jessica, formerly known as son Jesse") to avoid future issues. Discuss this with your attorney when writing the will.

Living Trust

A trustor creates a living trust (sometimes called a revocable living trust) by placing property and money into it. Establishing a trust involves important legal elements, and it's best to consult an estate planning attorney rather than go it alone.

The trustee distributes property immediately upon the trustor's death without going through probate. For individuals living in LGBTQ-hostile states or who have relatives that might interfere with a will, a trust helps avoid issues with distributing the property.

A pour-over will takes all assets from the will and places them into the trust. Pour-over wills are useful for any assets acquired after completing the trust but before you transfer them to the trust account.

Other Estate Planning Considerations

Estate planning means thinking about the time you won’t be here to intervene with friends and family members. You need all your wishes carefully spelled out, and for LGBTQ+ families, that means thinking about changing laws and possible family disputes. You need to think about everything that might affect the smooth transfer of your property.

Other estate planning documents to keep with your will and trust might include:

• A “no-contest clause” disinherits anyone who challenges the validity of your will. To be effective, you must word them correctly, so explain to your attorney what you want. If you anticipate a family member challenging your spouse or a child, you may need one of these clauses.
• Transfer-on-death (TOD) accounts. TOD or POD (pay-on-death) accounts are like joint accounts, except the other person cannot access the account until after your death. TOD/POD accounts ensure your spouse or beneficiary has immediate access to a bank or retirement account without probate or other legal requirements.
• Tangible personal property memorandum (TPM). A TPM is a list that gives specific personal items to particular beneficiaries. You can use a TPM to leave furniture, artwork, jewelry, and the family silverware to your children or other friends and family. You cannot leave money, vehicles, or real estate. Not all states allow you to use a TPM.
• Pets. Animals cannot inherit property. In fact, most jurisdictions consider pets as property themselves. If you have specific pet care instructions after you die, leave these in your will. You can create an animal care trust and designate a trustee.

Minor Children

For many same-sex couples, having children is the dream of a lifetime. Keeping them safe is every parent’s goal. It is not clear yet what may happen to parental rights if the Court overturns Obergefell or other states pass other laws affecting LGBTQ+ rights.

If one parent is the biological parent and the other is not, most legal experts recommend that the non-biological parent legally adopt the child. Sometimes called "second parent adoption" or "confirmatory adoption," this procedure resembles stepparent adoption and helps ensure legal ties to the child.

Health Care and Medical Decisions

During the early days of the AIDS epidemic, hospitals did not recognize non-traditional couples as “married” for visitation purposes. For the most part, these policies have changed. But they could be among those abandoned by the passage of new laws. LGBTQ couples can protect themselves and their families by having these documents prepared ahead of time.

Health Care Power of Attorney

Like other powers of attorney, the health care power of attorney gives your agent the right to make medical decisions on your behalf. Common decisions include:

• Which medication or treatments you will receive
• Whether you will receive life-prolonging treatment, including artificial feeding, hydration, or ventilation
• Whether you receive pain relief or palliative care
• Your admission or discharge from a facility, even if it is against medical advice
• Who may visit or not visit

With your HPOA, you should include a HIPAA waiver. The Health Insurance Portability and Accountability Act prevents your doctor or hospital from sharing your medical information with a third party. The HIPAA waiver lets you designate others, including the agent named in your HPOA, who can access your medical records.

Living Will

A living will, also known as an advance health care directive, is not the same thing as your last will and testament. Your living will gives your family members or HPOA specific instructions on what you want done if you cannot communicate your wishes.

Advance directives are sometimes called “end-of-life” instructions since these are your orders for what should happen if doctors determine you will not survive without extraordinary measures.

• Artificial life support. You can approve or limit artificial support such as artificial ventilation, dialysis, or other mechanical assistance.
• Hydration and nutrition. Artificial feeding via nasogastric (NG) tube or stomach tube and IV hydration can last years. You can limit the time doctors keep you alive with these measures.
• Palliative care. If you are in hospice or in-home care, palliative care means pain-relieving treatment intended to maintain quality of life during your final days or hours. It may include morphine, oral hydration, and other comfort maintenance techniques.
• Religious preferences. If there are religious practices you want or do not want in your care, you may specify these in your living will.

A living will differs from a Do Not Resuscitate (DNR) order. You should only have a DNR if you know you are near your life’s end and do not want paramedics or emergency room doctors to attempt life-saving measures. A DNR order means that first responders will not attempt CPR or other means to save you, so be sure you’ve discussed this with your family before creating one.

Hospital Visitation Authorization

Under a 2011 federal law, hospitals that participate in Medicare and Medicaid must permit LGBTQ+ patients to have visitors of their choosing. As with anything done in a hospital, there is a form patients must complete naming who may visit and who cannot.

It’s a good idea to attach your list to your HPOA documents so your health care agent can update your authorization if you cannot.

Get Legal Advice From an Estate Planning Attorney

You can complete many of these forms yourself. However, establishing trusts or designating powers of attorney may need help from an estate planning attorney who knows your state’s legal requirements. LGBTQ+ lawyers can also assist you in crafting these documents for your unique needs.