3 Estate Considerations for LGBTQ Persons

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by Kathy Fish, Fish and Associates Inspired Financial Planning

A will is a great starting point but is by no means the only documentation that may help ensure that your end-of-life wishes are respected. Because estate strategy is a tricky topic, working with professionals may be the best way to ensure that your legacy is handled the way you want it to be. Your financial professional may be a great resource as you start to explore your options for your partner and your family.

Choosing to Say I do— or I don’t
If you are a member of the LGBTQ+ community, your financial and estate needs may present different challenges from other married and partnered couples. We celebrated when the 2015 Obergefell v. Hodges Supreme Court decision made LGBTQ+ marriage legal and paved the way for many LGBTQ+ couples and families to have their unions protected at a federal level. However, these couples may face particularly complicated issues when it comes to establishing a workable estate strategy. Let’s take a look at some considerations you should keep in mind.

Getting married is one of the biggest commitments that you can make during your lifetime. While many married people end up living happily ever after, over half of marriages end in divorce. Marriage isn’t the right choice for everyone, or for every partnership. The Pew Research Center confirms that 45% of Americans say that the make-up of a partnership or a family doesn’t matter, which means there’s less societal pressure to cement a partnership with marriage.[1]

However, there are benefits to getting married that extend beyond celebrating your commitment. The unlimited marital deduction allows married couples to make unlimited interspousal transfers of property without incurring a tax, either during their lifetimes or after one of their deaths. Its important to note as well that the unlimited marital deduction only applies to a spouse who is also a U.S. citizen. [2,3]

Keep in mind this article is for informational purposes only and is not a replacement for real life advice. So make sure to consult your tax, legal and accounting professionals before modifying your estate strategy.

Family Matters
One challenge is the care and custody of minor children. Your surviving partner may have to deal with unexpected conflicts, such as family members contesting a will or filing for legal custody of your children.

At minimum, a basic will is needed to establish guardianship for your children. Without a will, guardianship of minor children will be left up to the courts to decide, and even if there is a surviving spouse, the court may determine that it’s in a child’s best interest to be placed with another family member.

If one of you is the biological parent, then it’s important to consider having the non- biological parent file for legal adoption.

Establishing the surviving spouse as a legal parent may also help smooth any asset transitions from parent to child.

Handling End-of-Life Care
For LGBTQ+ couples, handling your end-of-life issues may be very important, especially if you aren’t married. Making decisions for a spouse or partner in a time of need can be difficult and complicated, even more so for unmarried couples, where the
spouse or partner may not automatically be the legally recognized decision-maker. Documenting your preferences for care may make a huge difference.

A will is a great starting point but is by no means the only documentation that may help ensure that your end-of-life wishes are respected. Because estate strategy is a tricky topic, working with professionals may be the best way to ensure that your legacy is handled the way you want it to be.

Your financial professional may be a great resource as you start to explore your options for your partner and your family.

There are several types of documents that may help with your estate strategy:

Durable Financial Power of Attorney: A durable financial power of attorney designates someone (your spouse or partner) to make financial decisions on your behalf should you be unable to do so.

Health Care Power of Attorney (or Health Care Proxy): Whether you are in a domestic partnership, married, or unmarried, a health care power of attorney is used to designate your partner or spouse as being able to make medical decisions on your behalf.

HIPAA Privacy Authorization Form: This form allows doctors and other medical staff to communicate with your partner about your medical condition. Your power of attorney and/or trustee will also need this information as proof of your medical condition.

Health Care Directive: This outlines what types of health care measures you would like if you are unable to speak for yourself

Because estate strategy is a tricky topic, working with professionals may be the best way to ensure that your legacy is handled the way you want it to be.

Your financial professional may be a great resource as you start to explore your choices for your partner and your family.


  1. PewResearch.org. April 10, 2020.
  2. IRS.gov, March 3 2020.
  3. Wealthenhancement.com, June 2,2020

Securities offered through Kestra Investment Services, LLC (Kestra IS), member FINRA/SIPC. Investment advisory services offered through Kestra Advisory Services, LLC (Kestra AS), an affiliate of Kestra IS. Fish and Associates is not affiliated with Kestra IS or Kestra AS. Kestra IS and Kestra AS do not provide tax or legal advice. Investor Disclosures : https://bit.ly/KF-Disclosures