Estate Planning 101 for LGBTQ Couples

It’s true, most couples can benefit from estate planning. It’s a way to ensure your assets end up in the right hands after you die, and that your health care wishes are followed. But LGBT couples in particular often have special situations that require extra planning.

Here are five steps that LGBTQ couples can take to get started with estate plans.

1. Know your marital status

The Supreme Court’s decision in 2015 legalized same-sex marriage in the United States, but the patchwork of prior state laws has had some unintended consequences when it comes to estate planning, because assets typically flow directly to a spouse upon death, it’s important to be sure past relationships really are history.

For example, prior to 2015, some same-sex couples got married in states where it was legal, but then moved to states that didn’t recognize those marriages and later broke up. Thinking their nuptials weren’t valid in the non-legal states, many couples split up but never dissolved their marriages legally speaking. In addition to that, some states automatically converted registered domestic partnerships or civil unions into legal marriages.

Resulting in a lot of people being married and not knowing it.

2. Look beyond a will

A will seems like a no-brainer, especially if you have children from previous relationships or those who had children before legally marrying. Without one, it’s often unclear where assets should go when the last partner dies.

Same-sex couples shouldn’t stop there though. A power of attorney is also a good idea since it gives a spouse or someone else the power to act on your behalf if you are incapacitated.

Setting up a trust can also help, especially if there are concerns about battles over your assets after you die.

Unfortunately, same-sex couples families are more apt to contest the will than heterosexual couples because more LGBT people tend to be estranged from their birth families.

Couples can put their assets into a trust, and when one of them dies, there’s less of an opportunity to contest it, because trusts usually don’t go through probate.

3. Think about your medical needs

Think about this, if you are injured and in a coma, and the prognosis isn’t good, the harrowing decision to “pull the plug” has to go to someone. Think about who you would want making that choice for you. No matter who it is, you want to be sure it’s documented.

There are several options, but the two most popular ones are:

A health care surrogate sometimes referred to as a health care proxy, is someone you choose to make medical or spiritual decisions for you, typically if you’re incapacitated. It can also authorize doctors to share your medical information with specific people of your choosing.

A living will, a do-not-resuscitate or other kind of health directive, which documents your preferences about medical treatment when you can’t communicate. This is useful in a case where you know you wouldn’t want to “live” on life support for years but you don’t think your partner will give the ok to pull the plug. You can essentially document in your will that you only want to remain on life support for….let’s say 6 months, but after that, you wish to be removed from life support. The decision no longer rests in your partner’s hands.

4. Plan for the children

Typically, when parents die, their assets pass on to their children, but to ensure this happens some same-sex parents might need to make adoption part of their estate planning if they haven’t already. This is because it’s more common for only one of the parents to be biologically related to the child.

The idea is to ensure that your assets flow to the children rather than to aunts, uncles or other family members. If there’s been no legal determination of the child, and your partner doesn’t have an estate plan, the child may not get anything.

If only one spouse or partner is legally recognized as the parent, adding a trust with certain provisions will at least ensure the non-legal parent remains in contact with the child if someone else becomes the guardian.

5. Don’t just wing it

LGBT couples should generally avoid do-it-yourself estate planning services online. Most of the forms there don’t account for the needs of same-sex couples.

If you have questions about estate planning, contact Chuck Bendig to set up a free consultation. With more than 39 years experience, we make it easy for you to understand LGBT Estate Planning so you can make the best decisions for yourself and your family.

Getting Re-married? Consider second spouse planning.

Probate & Estate, Wills

No one wants to think about their untimely death. Especially after you’ve just been given a second chance at love. However, if you’ve just gotten remarried and you have children from your first marriage, how do you ensure that both your new spouse and your children receive an inheritance if you die? Do your children or your new spouse get the house? How will your new spouse get by financially if you choose to provide an immediate inheritance for your children?

You want to make sure that your children won’t be disinherited if you leave everything to your new spouse, who then can ultimately will the money elsewhere. Your current will could be fraught with risks that could cause your children to be disinherited.

Here are some possible solutions:

Pass your assets to a revocable trust agreement that’s funded during your life through your will or through beneficiary designations. The trust is revocable at any time, so you’re able to change your mind. Upon your death, the trust becomes irrevocable and would benefit your spouse and children.
Invest assets to make them income-producing and pay all the income to your new spouse for the rest of their lifetime, while still preserving the principal for your children. Upon your spouse’s death, the remaining principal of the trust goes directly to your children outright or in further trust.
You can also choose to name an independent trustee who will have the power to pay a portion of the principal to your new spouse if there’s a need. You can even have your second spouse’s interest in the trust end upon remarriage.

Through proper planning, you can maintain control over your assets to prevent disinheritance of your children, while at the same time, providing for your spouse. However, if you don’t make specific arrangements, here’s a broad look at what may happen to your assets, although this may vary with state law and other situations:

Your second spouse may be able to claim 1/3 to 1/2 of the assets covered by your will, even if your will specifically states something else. Click here to learn more.
Joint bank or brokerage accounts held with a child will go to that child.
Your IRA and/or 401K will go to whomever you’ve named as beneficiary. Contrary to what you may have been told, wills do not supersede these beneficiary elections.

If you want a different arrangement, you and your spouse must have a written prenuptial agreement that meets your state’s inheritance laws. You’ll need to change beneficiary forms.

These financial issues merit serious consideration. Competing interests of your adult children and your second spouse may induce additional heartache once you’re gone. In the case of blended families, it’s always wise to have a professional evaluate your existing will to ensure your desires are carried out.

What happens to him if something happens to you?

Probate & Estate, Wills

In 2011, entrepreneur and Columbus Ohio native, Nick Braun adopted a rescue lab mix and named him Beau. Beau quickly became a member of the family. So, it’s only natural he would want to take care of him just like any other family member. That included health insurance (Nick created petinsurancequotes.com) but also making provisions for Beau in the event something should happen to Nick.

For many people, it’s a multistep process to make sure the designated caregivers have the financial support and guidance they need to assume care of your beloved pet.

You can’t just say, ‘Hey Dad, can you take the dog if something happens?’, but that’s exactly what most pet owners do (if anything at all). Including your pet into your estate plan can help ensure they receive a continued high level of care should you die before they do. Having them listed in your estate plan could also keep them out of a shelter, which is where many pets end up after their owners die.

When beginning your estate plan, here are a few things to consider:

Name a caregiver.

When thinking about choosing a caregiver for pets, you should consider whether that person is willing, capable and responsible enough to oversee the pet for the long term. Special accommodations could be needed if a pet has a long lifespan or special needs.

Consider monetary expenses.

Make a list of all pet-care costs, taking into account the pet’s expected lifespan. Add up the annual expenses for veterinary care, any medications, monthly grooming, food, and toys as well as a contingency for unanticipated expenses.

Next, determine how those funds should be set aside. Some options include a trust, a bank account controlled by an executor (or by the guardian) or life insurance. Keep in mind that the beneficiary of a life insurance policy can’t be a pet, but it can be a trust that includes provisions for a pet’s care.

Outline a care plan.

Write down clear and detailed instructions on how you would like your pet to be cared for. For example, you can make a list that includes the food your pet eats, how often a day they’re fed, the contact information for your preferred kennel, and the information for any pet-insurance policy as well as his veterinarian contact info.

Formalize agreements.

Once the basic decisions about a pet’s care have been made, owners should formalize things to help ensure that their wishes are carried out. Some people create a pet trust for their animals. Others provide for pets in their wills. Both options require assistance from a lawyer. An owner who goes this route should make sure someone can step in immediately to care for the pet since executing a will usually takes some time. Once the administration of an estate is wrapped up, the will’s executor has no continuing obligation to ensure the pet’s well-being.

Whichever option you decide, estate planning attorney Chuck Bendig is here to help. The idea is to protect the ones you love, whether they’re human family, furry or feathered.

3 Important Reasons Why You Need an Estate Plan

Probate & Estate

If you think estate planning only involves drafting a will to leave your belongings to whichever heirs you choose, you’re not alone.

Many people don’t realize there are multiple elements of estate planning that should be addressed, and while wills are an important part of the process, it doesn’t address all the issues that could arise.

1. Not Only for Death

A common misconception about estate planning is that it only addresses issues that arise after someone dies. The truth is there are very important issues that arise when a person is alive. Having a solid estate plan in place could help to ensure that there will be no problems between family members.

If you’ve made financial investments, including real estate, you will want to make sure these things are protected should you become ill or otherwise incapacitated. And what about the family business? If you have one, you’ll want to make sure it’s well-insulated from any problems in the event you are unable to make needed decisions.

An estate planning attorney can help you set up a power of attorney. This allows you to choose a person you trust to make important decisions in the event you are unable to, and not have the courts do it for you.

2. Your Health

There’s a possibility that you know families or have heard about families where a loved one has become ill or incapacitated and are no longer able to make their own medical decisions. When and if this happens, someone needs to have the authority to be a proxy. You have the right to make your own medical decisions as far as what you will and won’t allow as life-saving measures. If you’re unable to do so, it’s important to have someone else you trust to speak for you.

Your estate planning attorney can document those wishes in what’s referred to as a living will. You can also have your attorney draw up paperwork that will appoint a healthcare power of attorney which assigns an individual of your choice to make sure your wishes for medical treatment are kept.

3. Your Children

Having an estate plan is so important if you have young children. An estate plan can ensure they will be taken care of by naming who you want to be the legal guardian, and keeping full control of who will raise your child should you no longer be here. Without this document in place, the court will decide who will raise your child and it will not necessarily be the person you would have chosen.

You can also set up financial provisions for your children. Trusts can be formed that will provide for your child as they grow up, as well as once they’ve reached adulthood. When setting up a trust, you assign someone to be the trustee overseeing the funds, and also designate when the child should take control of the funds once they reach adulthood.

An estate planning attorney, like Chuck Bendig, can explain the process to you in more depth and go over what elements would be the best choices for your specific situation.

Contact Charles Bendig today and get the process started.

Family Fights Over Inheritance – When ‘Fair’ isn’t always equal

Probate & Estate, Wills

Thinking about your eventual demise is not exactly something that people like to spend a lot of time doing. Despite this, planning for the future and the distribution of your assets to loved ones is a necessary part of ensuring that your wishes are carried out in the way you’d like.

By creating a clear plan for your final wishes with an attorney, you can ensure that complications are mitigated before they arise.

You will want to make sure that the ones you love are able to look to your will as a roadmap for settling your estate as quickly as possible. Losing a loved one can be difficult for anyone to deal with, by having a will in place, they will have the ability to spend time grieving rather than deciphering how you would have liked your assets divided.

CONTENTIOUS FAMILY SITUATIONS
At times, family can become estranged from one another. Disagreements or tensions can arise that make family relationship complicated. Sometimes, when a person passes without a will in place, family members may fight over your possessions. This can range from money, to valuables but also family heirlooms.

Grief can sometimes cause people to behave irrationally. They may be looking to hold onto things you once held dear as a way to keep your memory alive. By having an attorney draft your will, you can have a clear path to guide loved ones after you pass away.

Here are some examples of situations that are likely to cause heightened feuds within a family when a loved one passes away:

Giving a beneficiary a portion of their inheritance before you die but not others in your family who stand to inherit assets. Be clear in your will if this was actually the case.

You may want to make sure that you identify only one person to hold the responsibility of trustee. By appointing more people to manage your will, could put them at risk of disagreeing or fighting over how the estate should be managed.

If you are married a second time, or later in life, you will want to outline clearly who stands to inherit what. ALWAYS update your estate plan or will after any changes in marital status.

You will want to make sure that you are clear which of your assets can be sold and which you expect beneficiaries to cherish. Family members who are destitute or are in need of money are more likely to sell things that you would like to keep in your family.

UPDATE IT OFTEN
If you have disinherited someone within your family such as a child, you will want to make sure that your will is as updated as soon as possible. It is possible for someone who has been left out of a will to challenge it in probate.

UNDUE INFLUENCE
If the will being created is for an elderly member of your family, you will want to make sure that they are not swayed or manipulated into leaving someone an inheritance who is taking advantage of them.

SOUND MIND
When a family member suffers from substance abuse or a mental health disorder, their judgment will surely be clouded after losing a loved one. They are also more likely to sever ties with family members and act irrationally when it comes to making decisions based on your will.

An attorney can serve a number of purposes when it comes to your will. Some people may even appoint an attorney to help manage the estate or act as executor after passing away. This can prove to be beneficial in situations where family dynamics are complicated. Having a professional, who is impartial, can help ensure that your wishes are carried out in the way that you would have liked. An attorney may even be able to help families navigate challenging familial situations when dividing your assets and carrying out your final wishes. If you need any legal help regarding wills, contact Attorney Charles Bendig for any information.