• Michael Casterlow

Estate Planning and the LGBT Community

Updated: Jun 12, 2019

While estate planning is important for all North Carolinians, it may be even more crucial for individuals who are gay, lesbian, bisexual, queer, or transgender. For the LGBT community, estate planning provides protections to help guard against discrimination when people are reluctant to recognize your relationship, even if you are married.

In many states, if a member of the LGBT community fails to plan properly, the result can be devastating to his or her spouse or partner and family. Having no estate plan, or relying upon a Will, Joint Tenancy, or Tenancy in Common as an estate plan is tantamount to giving up control of your estate and management of your well-being in times of incapacity. This need for an estate plan is critical in case an accident or illness renders a partner or spouse incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.

Even if you are married, planning is critical in the event you encounter resistance to recognize your marital rights.

In U.S. v. Windsor, the U.S. Supreme Court made federal benefits available to spouses in same-sex marriages and cleared the way for same-sex marriage. In U.S. v. Windsor, the Supreme Court struck down a section of the Defense of Marriage Act (DOMA), a federal law defining marriage as only between a man and a woman. That section of the law denied federal recognition to same-sex couples validly married under state law. The purpose of the Court’s ruling was to ensure that all married couples within a state are treated equally under federal law.

Then in 2015, the Supreme Court ruled 5-4 in Obergefell v. Hodges that there is a fundamental constitutional right to marry, which includes same-sex couples. It also ruled that a same-sex marriage valid in one state must be recognized in all states.

While there is still a ways to go with the prevention of discrimination in other areas, such as employment, the LGBT community achieved a remarkable milestone: Marriage Equality.

However, national marriage equality only comprises one building block of full equality for LGBT individuals and families under the law. Estate planning remains a critical component of creating a thriving family during your life and beyond – and marriage equality legislation offered no advancement on the topic. Therefore, like other LGBT individuals residing in North Carolina, you may have unsolved concerns regarding your estate plan. Depending on your gender identity, you may carry apprehensions about whether your family members will recognize your unique identity during your memorial or funeral service. If you are a parent, especially in a blended or adoptive family, you may worry about your biological or non-biological children’s futures if you become incapacitated or if you pass away.

Proper estate planning from an experienced attorney can help alleviate many of the problems that the LGBT individuals and couples face when making end of life decisions. A last will and testament can describe in detail any number of final wishes. For example, you may wish to give directions regarding your funeral or memorial service arrangement. Most importantly, you may name guardians if you have minor children and specify the distribution of your assets. Leaving clear instructions may be distinctly important for transgender or gender-nonconforming individuals whose family members may fail to accept or support their lived gender identity. A durable power of attorney can provide for the management of your financial affairs if you become incapacitated. This type of power of attorney empowers the person you name to handle your financial affairs if you cannot do so yourself because of illness, injury, or disability. A healthcare power of attorney or other instrument can provide for the management of your medical care if your become incapacitated. This empowers a responsible party to make important health decisions for you if you cannot make those decisions yourself due to illness, injury, or disability. A trust, which serves as a separate legal entity that can hold your assets apart from your personal finances or property. Trusts are appropriate in many situations including for transferring assets to avoid probate. Some irrevocable trusts are appropriate for preserving funds in case of long-term care or medical expenses. If you and your partner are not legally married, a trust in which your partner serves as trustee can work as an alternate means of asset transfer.

Mike Casterlow of The Law Office of Mike D. Casterlow can help you work through all of these decisions. He can help you decide which tools might best work for your particular situation. So, don't wait until it's too late to get the help you need. Call Mike today!