5 LGBTQ+ Georgia Estate Planning Concerns You Haven’t Considered

2022 UPDATE:

Recent Supreme Court cases have made an already-important issue of even more urgency: LGBTQ+ estate plans.

In his concurring opinion to overturn Roe v. Wade at the end of last month, Supreme Court Justice Clarence Thomas argued that more cases require a second look – including the case that brought about same-sex marriage. 

It was the Supreme Court that ruled, in a 2015 case called Obergefell v. Hodges, that the fundamental right to marry is guaranteed to same-sex couples through the Fourteenth Amendment to the United States Constitution.

However, if the court decides to overturn previous decisions such as this that have protected LGBTQ+ rights, it could have a ripple effect throughout the country.

Marietta Estate Planning proudly stands with the LGBTQ+ members of our community in Georgia and throughout the country. But in these uncertain times, it is vital that LGBTQ+ couples put a plan in place for the future. 

Experts are recommending that LGBTQ+ couples create wills, trusts, and powers of attorneys, and elect beneficiaries as soon as possible. 

Estate planning is something that everyone should do—regardless of where they are in life. Although it might seem intimidating to plan for circumstances after you’re gone, in the long run, there is peace of mind knowing that your affairs will be settled the way that you want.

However, Estate Planning is an even more important step for LGBTQ+ couples to consider. 

Generally speaking, there are unique legal implications for the LGBTQ+ community. Therefore, it is important to hire an experienced Georgia estate planning lawyer who is familiar with the legal snags that can make LGBTQ+ estate planning difficult.

Marietta Estate Planning knows these kinds of issues that can arise and has had experience creating estate plans for LGTBQ+ couples.

Even in the year 2022, the LGBTQ+ community faces challenges in all aspects of life – including in estate planning. 

For example, the adoption of a child by a same-sex couple is not always recognized by family members. Unaccepting family members may try to seize parts of your estate, or they have your will contested because they do not recognize the validity of your relationship.

Here are some things to keep in mind when creating your estate planning, if you are concerned these types of issues might happen to you:

Wills are essential when it comes to making sure your wishes are properly honored after you pass. This includes the allocation of your assets, aka that all of your possessions are properly distributed to whomever you would like. 

When it comes to LGBTQ+ couples, having a will can be the legal security that your partner will receive your assets after you pass. Especially for couples who are unmarried, this legal security allows you and your partner to have peace of mind that they will receive what you leave for them. Without this security, it is likely that your partner will be disinherited. 

If you’re worried that your family may contest the will, that is where creating a trust comes in. Creating a trust can offer further security of your assets and is worth discussing with your estate planning attorney if you have fears of family member interference.

While a will is a document that allows you to make decisions for your assets after you pass, a durable power of attorney allows you to designate a person to make decisions if you are medically unable to. 

Why is a durable power of attorney important for LGBTQ+ couples? Unfortunately, financial decisions and wishes for their partners are often contested and less followed. With a durable power of attorney, it is less likely that your choices will be ignored.

There is also a document called a health care proxy that allows another person to make medical decisions on your behalf. Other documents that are important to have lined up include:

Georgia law has an Unlimited Marital Exemption – or Unlimited Marital Deduction – which is a provision that lets someone transfer an unrestricted amount of money or assets to their partner at any point in time, even at the death of the person transferring the assets, without being taxed. 

Due to same-sex couples recently receiving this right, you may not be aware of this provision and how useful it can be. It is now possible to transfer assets from ones’ deceased spouse without a minimum or maximum guideline, which previously wasn’t possible for LGBTQ+ couples. (However, this only applies if the couple is legally married.)

Unfortunately, LGBTQ+ couples can face many challenges when it comes to adoption or even if a child is only the biological offspring of one parent in the relationship. 

A will, in this case, is necessary to establish guardianship. What may make the process easier, when it comes to the child who is biologically related to only one of the partners, is if the other partner adopts the child (which is known as second-parent adoption, co-parent adoption, or stepparent adoption). 

Another thing to note in a will – especially if the child is adopted – is that assets will be passed down to your child. This note will ensure that there is no contestation regarding if the child will receive your assets.

Making sure that the ownership of your real estate is listed with both partners as owners is another step to consider. 

There should be no room to challenge that a partner has rightful ownership of a property if their partner passes. 

This can be done through a Tenants in Common document or a Joint Tenants with Rights of Survivorship document.

Because all of these factors are unique for every couple, it is highly advised to hire an experienced Georgia estate planning attorney. You want to be sure that your estate plan is done correctly, leaves no stone unturned, and no room for anyone to contest your wishes.

Our team at Marietta Estate Planning will work with you to make sure each detail is accounted for. Contact Marietta Estate Planning today.