Whether you are married or in a committed partnership, estate planning is about more than just planning for death—it is about planning for life. Thoughtful and thorough estate planning is the way to ensure your beloved will be protected and provided for in the event of your death or incapacity. If you are a member of the LGBTQ+ community, estate planning for same-gender couples in Florida is even more critical.
In 2015, the U.S. Supreme Court legalized same-gender marriage in its landmark ruling in Obergefell v. Hodges. Despite the high court’s decision, many individual state laws or constitutional amendments remain, or were subsequently passed, to prohibit same-gender marriage if the U.S. Supreme Court overturns its Obergefell v. Hodges ruling. Should the now-more-conservative U.S. Supreme Court overturn the right to same-sex marriages – similar to its recent ruling to overturn the long-standing decision in Roe v. Wade – those state laws and constitutional amendments would activate. This could be devastating for same-gender couples who currently have no estate planning in place.
Although same-gender marriage is legally recognized in all 50 states, long-held prejudice at both the political and family level continues to create complications for both married and unmarried same-gender couples. For example, suppose you have family members who are opposed to your marriage. In that case, your estate plan may be more likely to be disputed or even sabotaged by unsupportive relatives. This sentiment could mean that family members are more likely to contest your wishes, or it might result in custody battles over non-biological children in the event of the biological parent’s death.
Unsupportive family members may even try to block the ability of your partner to make medical decisions on your behalf should you become incapacitated by accident or illness. Even worse, your family members could try to kick your partner out of a shared home, if you are in an accident or fall ill, or they may even block your partner from seeing you if you require hospitalization.
Additionally, if you and your partner are unmarried, your partner would have no rights or protections should you become incapacitated or die without any planning in place. This avoidable consequence may leave your partner vulnerable to several potentially dire risks.
Given these issues, if you are in a committed partnership, you should be aware of several unique considerations regarding your estate plan.
1| A Will Alone Might Not Be Enough
Suppose you are unmarried and die without any estate plan. In that case, your property will be shared with your surviving family members according to Florida’s intestate laws (intestate = dying without a will). Florida’s intestate laws would not protect your unmarried partner. So, if you want your partner to receive any of your assets upon your death, you need to, at the very least, create a will.
However, having an estate plan that consists solely of a will does not provide sufficient protection for your spouse/partner. We generally recommend that same-gender couples – even those who are married – create both a will and a trust. Although a will is a foundational part of nearly every estate plan, having just a will could leave your partner/spouse at risk for a variety of reasons.
Most importantly, a will does not work in the event of your incapacity, which could happen at any time before your death. Should you become incapacitated with only a will in place, your partner/spouse may not have access to needed funds to pay bills, or they might even be kicked out of your home by a family member appointed as your guardian during your incapacity.
Furthermore, upon your death, a will is required to go through the often long, costly, and potentially conflict-ridden court process known as probate. In contrast, assets that are properly titled in the name of your trust would pass directly to your partner/spouse upon your death, without the need for probate or any court intervention.
If your relationship is not supported by one or both families, avoiding probate is especially important. If a family member does not support your relationship, they are more likely to contest your will during probate.
If your will is successfully contested, this could prevent your surviving partner/spouse from receiving assets you left in your will. The process of contesting is extremely time-consuming, costly, and emotionally draining for your surviving partner/spouse – during an already difficult and stressful time.
Typically, a will is not set up to protect your assets from creditor claims or lawsuits after the assets are passed to your partner/spouse. However, leaving your assets in a trust that your partner/spouse can control would ensure the assets are protected from creditors, future relationships, and/or unexpected lawsuits.
2| Incapacity Planning is Especially Vital
As we touched on earlier, estate planning is not just about planning for your eventual death – it is also about planning for your potential incapacity due to injury or illness. Proactive estate planning allows you to name the person (or persons) you would want to make your health care, legal, and financial decisions for you if you are incapacitated and unable to make such decisions yourself through a medical power of attorney.
If you have not planned for incapacity, the choice is then left to the court to appoint the person(s) to make these decisions on your behalf. If you are unmarried and the court appoints one of your relatives as your guardian, your family could leave your partner totally out of the medical decision-making process. This could result in your spouse/partner being denied the right to visit you in the hospital. Even if you are married, it is not guaranteed that your spouse would have the ultimate legal authority to make such decisions.
Though the court typically gives spouses priority as guardians, this is not always the case, especially if unsupportive family members challenge the issue in court. To ensure your partner/spouse has the ability to make these decisions for you, you must grant them the legal authority to do so using medical power of attorney and durable financial power of attorney.
A durable financial power of attorney gives your spouse the authority to manage your financial, legal, and business affairs, including paying your bills and taxes, running your business, selling your home, as well as managing your banking and investment accounts.
In addition to creating a will and trust, be sure to also create advance health care directives – including a living will – so that your spouse will know exactly how you want your medical care managed in the event of your incapacity, particularly at the end of life.
Finally, do not forget to provide your partner/spouse with HIPAA authorization within the advance health care directives, so they will have access to your medical records to make educated decisions about your care.
3| Estate Planning Offers Alternative to Adoption
Although married same-gender couples now enjoy nearly all of the same rights as opposite-gender couples, there is one key right that is still up in the air: the automatic right to be legal parents. While parental rights are automatically bestowed upon the biological parent of a child, the non-biological spouse/parent still faces a number of challenges when it comes to obtaining full parental rights.
The Supreme Court has yet to rule on the specific issue of the parental rights of the non-biological parent in a same-gender marriage. As such, there is a tangled, often contradictory, web of state laws governing such rights. For example, if you are in a married or unmarried same-gender relationship in Florida, the non-biological partner is not automatically recognized as a legal parent of the child.
Since the Supreme Court has ruled that the adoptive parental rights granted in one state must be respected in all states, many same-gender couples have turned to second-parent or stepparent adoption to gain parental rights for the non-biological parent. For context, a second parent adoption in Florida is a legal proceeding that allows an unmarried person to adopt their partner’s child, whereas a stepparent adoption allows one person to adopt the child of their spouse.
Fortunately, same-gender couples do have an alternative to adoption—ESTATE PLANNING. Using a variety of estate planning strategies, a non-biological, same-gender parent can obtain nearly all parental rights, even without formal adoption.
Starting with our For The Kids Plan™, same-gender couples can name the non-biological parent as the child’s legal guardian, both for the short-term and the long-term, while confidentially excluding anyone the biological parent thinks may challenge their wishes. In this way, if the biological parent becomes incapacitated or dies, their wishes are clearly stated, so the court can do what the parent would have wanted and keep the child in the non-biological parent’s care.
Beyond that, there are several other estate planning vehicles—living trusts, power of attorney, and health care directives—that can be utilized to grant the non-biological parent additional rights. Same-gender couples may also consider “co-parenting agreements”, which are legal agreements that stipulate exactly how the child will be raised, what responsibility each partner has toward the child, and what kind of rights would exist if the couple splits or gets divorced.
Experience You Can Rely On.
In light of these issues, it is vital for same-gender couples, especially those with children, to always work with experienced estate planning lawyers, and avoid using generic online documents at all costs. As your Personal Family Lawyer®, we have the experience of creating plans specifically designed to prevent your plan from being challenged in court by family members who disagree with your relationship.
With the proper planning, we can ensure that no matter what happens to you, your partner and family will be protected and provided for in the exact manner you wish, rather than being stuck in a financial and legal nightmare. Moreover, our specialized planning services can help ensure that non-biological parents in a same-gender partnership have as many parental rights as possible, without resorting to costly, confusing, and time-consuming proceedings. If you want to learn more about estate planning for same-gender couples in Florida, schedule a no-cost initial consultation with us today!