Gay Estate Planning
long as you have not put your wishes in a legal writing, you risk
losing the right to choose who you want to make vital decisions
about your health care and finances.
Your partner will have no say
or control over the disposition of your remains. More importantly,
your partner will have no right to inherit your property, raise
your children, and may not even have the right to visit you in the
Gay Estate Planning simply means that you anticipate you will someday
become ill and die and are therefore doing something now to assure
that your health care and finances will be properly managed and
that your assets will be smoothly transferred to your loved ones
or other beneficiaries.
There is a need to define the
property rights of a couple by contract since very often no law
recognizes gay relationships. A cohabitation agreement may cover
virtually all of the issues addressed in a traditional marital
agreement. Prudence suggests that cohabitation agreements follow the
technical requirements of marital agreements and, accordingly, be in
writing, signed by both parties and notarized.
There is an increased likelihood of challenge to our estate plans by
hostile relatives. This fact overshadows all aspects of gay estate
planning for the gay and lesbian community. Wills and other gay
estate planning documents and devices for unmarried partners are
more likely to be challenged by the testatorís biological family
members on grounds of undue influence than would be the case if the
partners were married. . "Courts consider...heterosexual
spouses to be the natural object of a decedentís beneficence, but
regard...gay lovers as illegitimate beneficiaries whose undue
influence over the testator unnaturally pressured the testator into
an improper decision."
There is a risk that AIDS-related conditions might impair judgment
and function as it relates to approval of legal documents. There is
a likelihood of periods of AIDS-related disabilities.
Gay and lesbian couples cannot utilize the marital deduction, the
financial cornerstone of estate planning for a married couple.
Therefore, gay couples must take advantage of other tax-saving,
A properly created estate plan is a foundation for an overall
approach to asset management, insuring your needs will be met today
and in the future. A properly drafted estate plan will provide
substantial protection from both probate expenses and estate
taxation. It will insure that your individual wishes will be
realized, as you desire. Without proper documentation, all that you
have worked so hard for and dreamed of can be lost and turned over
automatically to relatives, whether or not that is your preference,
or paid in taxes. With prudent gay estate planning, you control your
assets and their ultimate disposition.
Proper gay estate planning is a great concern to the GLBT community.
In the absence of legally binding documentation, the State directs
the disposition of assets at death. Non-relatives have no standing
to inherit within the state-determined disposition.
An important benefit of estate planning is the ability to designate
and fund substantial contributions to non-profit organizations. In
estates valued in excess of $675,000 (this figure is subject to
change) it is important that gay men and lesbians consider
charitable giving to reduce estate taxation and to direct assets to
preferred recipients instead of the government. Ultimately, our
community will benefit through the development and growth of
endowments to permanently fund our organizations.
This brief information is meant
only as a guide and is not legal advice. Each individual should
consult with qualified professionals regarding their particular gay
estate planning needs. States have provisions that supplement
federal law and estate tax regulations. It is crucial to work
with a lawyer familiar with your particular circumstances.
Ultimately, a qualified estate-planning lawyer should draft the
various documents that constitute a complete estate plan. There
are four major areas of gay estate planning which have some degree
of overlap. They are as follows:
of a basic plan;
gift and estate taxes.
Contact a lawyer in your local