Written in Recognition of Make a Will Month
Estate planning is crucial for anyone who wishes to accurately and efficiently pass their assets on to their families or other heirs. But for LGBTQ+ individuals and blended families, an estate plan can serve as a much-needed bulwark against the shifting tides of legal and political ideology.
In celebration of Make a Will Month, we are sharing thoughts to consider in planning for your family.
The Supreme Court’s 2015 Obergefell v. Hodges ruling famously legalized same-sex marriage. It provided protections for LGBTQ+ couples who legally marry, including access to tax and social security benefits, inheritance rights, medical decision-making authority, and recognition as legal parents. Still, challenges persist, making estate planning especially important for this community.
If Obergefell were ever overturned or weakened, married LGBTQ+ couples could lose default legal protections—making estate planning even more critical.
Despite Obergefell, some states have enacted laws that limit LGBTQ+ rights, including religious exemptions and restrictions on gender-affirming care. If Obergefell were ever overturned or weakened, married LGBTQ+ couples could lose default legal protections—making estate planning even more critical.
In California, Probate Code §6401(c) confirms that only legally recognized spouses have default inheritance rights. Unmarried partners are excluded unless named in a will or trust. Similarly, non-biological parents may face custody challenges unless legal parentage or guardianship is established through estate planning.
Estate planning tools such as wills, trusts, powers of attorney, and healthcare directives are essential to ensure that LGBTQ+ individuals and their chosen families are protected, especially in the face of any legal changes.
Planning Strategies
Here are some estate planning strategies to consider for LGBTQ+ couples and blended families—especially those with children from previous relationships—to help avoid confusion, conflict, and unintended outcomes.
- Clarify Parental Rights and Guardianship. For LGBTQ+ parents, especially those not biologically related to their children, legal recognition is critical. Without proper documentation, custody disputes may arise, particularly if a biological parent or extended family member challenges the arrangement. Include guardianship designations in wills and trusts. Pursue adoption or parentage orders to establish legal parent-child relationships. Use healthcare proxies and school authorizations to ensure continuity of care.
- Execute Healthcare and Financial Powers of Attorney. Appointing a trusted individual to make medical and financial decisions is essential. Without these documents, courts may defer to biological family members who may not honor your wishes or understand your values. Draft and regularly update durable powers of attorney for healthcare and finances. Ensure your appointed agents are aware of your preferences and responsibilities.
- Use Trusts to Control Asset Distribution. Trusts offer flexibility and control, especially when balancing the needs of a current partner with children from previous relationships. They also help avoid probate and maintain privacy. Create a revocable living trust to manage and distribute assets. Consider a special needs trust for beneficiaries with disabilities. Use no-contest clauses to discourage legal challenges from estranged relatives.
- Update Beneficiary Designations and Titles. Beneficiary forms on retirement accounts, life insurance policies, and bank accounts override your will. These must reflect your current relationships to avoid unintended distributions. Review and update all beneficiary designations regularly. Use joint ownership with rights of survivorship or payable-on-death (POD) designations where appropriate.
- Communicate Your Plan to Loved Ones. Estate planning isn’t just about documents—it’s about clarity. Open communication can prevent misunderstandings and preserve relationships. Share your intentions with family members and beneficiaries and explain the reasoning behind your decisions to reduce the risk of disputes.
- Work with an Attorney Who Understands LGBTQ+ and Blended Family Dynamics. Estate planning for non-traditional families requires legal expertise and cultural sensitivity. An attorney familiar with LGBTQ+ issues and blended family structures can help navigate: state-specific laws on parentage and inheritance; federal benefits and tax implications; and strategies to protect chosen family members and avoid litigation.
Final Thoughts
Blended families and LGBTQ+ households deserve estate plans that reflect their unique bonds and protect their futures. With the right legal tools and guidance, you can ensure that your legacy supports the people you love most—regardless of biology or marital status.
Planning Your Estate? Headed for Conflict?
Failing to plan in these rapidly changing times in our society can lead to unwelcome outcomes for you and your family. If you have questions about what we’ve covered here — whether you are thinking about your estate or you are an estate planner — our experienced litigators are here to help you avoid litigation or bring it to a satisfactory conclusion.
Contact us today to discuss your case in a confidential consultation.