Under federal and Illinois state laws, LGBTQ+ married couples are entitled to the same rights and privileges as heterosexual couples, including the rights of inheritance and survivorship. However, unmarried same-sex couples also have the same estate planning and inheritance dilemmas faced by opposite-sex couples. A failure to plan ahead to protect your loved ones is not defined by sexual orientation: people of any age and any relationship can cause stress, heartache and financial problems for their loved ones by failing to legally protect their futures.
According to a Pew Research Study on social trends, despite society as a whole becoming more accepting of same-sex relationships, 4 out of 10 LGBTQ+ couples face family opposition. When it comes to protecting your same-sex partner in the event you become incapacitated or die, LGBTQ+ couples need key estate planning documents to protect their loved ones.
Married and single same-sex partners need to make sure they and their children are legally protected if something should happen to them.
1. Advance Directive and Health Care Proxy
If you become incapacitated and your family does not respect your same-sex relations, who will make your health care decisions? If you don’t have a legal spouse and don’t appoint a health care proxy, the courts will assign someone to make your medical decisions – and it may not be your partner. A Healthcare Power of Attorney is a durable power of attorney, a legal device that makes one person to indefinitely make decisions on behalf of another.
2. Wills and Trusts
Do you have children together, are your children adopted, do you own a home together, have you co-purchased cars or other property? If a couple is not married and there is no will or trust in place to designate beneficiaries, Illinois intestate laws go into effect and the court will determine who inherits your same-sex partner’s belongings.
Wills and trusts can be set up to ensure that if your partner dies, the assets you share together are passed to you, and not to your partner’s parents or siblings.
Same-sex parents have to take extra precautions to make sure the rights of their non-biological children and their parental rights are protected if something happens to their partner. Protecting children may include legally adopting your partner’s child. Guardianship papers let a parent name a guardian to take custody of their child and provide appropriate care, manage their finances and any inherited money or property if something should happen to them.
4. Power of Attorney
If you are single but with a same-sex life partner, who do you trust to make financial decisions? Who do you trust to pay the bills and take care of your finances if you become incapacitated? A durable power of attorney is used to allow the designated person to handle affairs in a certain area of the principal’s life, such as in financial matters.
5. A Living Will
A living will is a document that expresses your final wishes to your healthcare providers and family as they relate to your continued healthcare and any life-sustaining measures. Whether married or unmarried this useful tool can give guidance to your medical power of attorney.
6. Communicate With Your Family
Unfortunately, for LGBTQ+ couples the reality is some family members may not support their relationship, even if it is legal. If you have the proper estate plan in place to protect your partner and your children, you have taken the legal steps to protect their future.
What If My Family Challenges My Will?
The reality is, if family members do not support your relationship they can take steps to challenge your will and estate plan. Estate litigation could be necessary to protect your loved ones. Litigation is expensive, stressful and time consuming. If you suspect there may be objections to your estate plan, it can be advisable to communicate your plans to your family members in advance and advise them that you have legally protected your partner, your assets and your children. An experienced estate planning attorney can protect your rights and your loved ones, and advise you on the best options to prevent challenges to your estate plan in the future.
• LGBTQ Couples and Estate Planning
• Is It Legal To Disinherit a Gay Child?
• FAQs: Is My Adopted Child My Legal Heir?
Married and co-habiting LGBTQ+ couples often have special estate planning needs to protect their loved ones. To talk to a probate, trust and estates attorney in Chicago or Lombard about how to make and store your will, contact the Estate & Probate Legal Group at 630-864-5835.