LGBTQ+ Elders Face Unique Planning Challenges
By Julie A. Dialessi-Lafley, Esq.
You have heard it and read it over and over again: everyone, regardless of their level of wealth, should have an estate plan. However, for LGBTQ+ elders, it may be even more critical to have an estate plan in place due to the challenges faced by many in the community.
Despite the fact that same-sex marriages are legally recognized in all 50 states, only 54% of same-sex couples are married. Not only are there still challenges for married same-sex couples, the high percentage of non-married couples also necessitates planning. While the government can create a law recognizing these marriages, there are organizations, businesses, and people who do not acknowledge these couples. The result is challenges for couples who simply want equality, as well as to provide and plan for their loved ones and chosen family.
“Making sure planning is in place to provide for the needs of the surviving spouse, partner, and other family and friends is crucial, as the laws in the absence of planning may not provide for those loved ones as you would want.”
Planning for retirement is both a financial goal as well as a lifestyle decision for LGBTQ+ elders. Making sure planning is in place to provide for the needs of the surviving spouse, partner, and other family and friends is crucial, as the laws in the absence of planning may not provide for those loved ones as you would want.
Additionally, social isolation can really creep up and become a serious problem to overcome. The question of where to retire has become overwhelming, as relocation brings with it a need to find an area that provides for the social inclusion for these elders as well as financial stability, reasonable cost of living, and lifestyle needs.
Within the U.S., about 80% of long-term care for older people is provided by family members, such as spouses, children, and other relatives. LGBTQ+ elders are only half as likely as their heterosexual counterparts to have close family to lean on or children to help. Simply put, folks who are part of the LGBTQ+ community are less likely to be married, they may have children where only one partner is the biological parent, and there is a high incidence of alienation from non-accepting family members.
Planning how long-term-care medical needs will be paid and who will act as the healthcare proxy/advocate for the LGBTQ+ elder is crucial, as many LGBTQ+ elders need to make sure they have an appropriate person to assist in making decisions about their care, as well as being concerned about harassment and hostility in facilities that serve the aging population. These folks often do not access aging services out of fear of hostile and harassing treatment. Few facilities are prepared to address insensitivity or discrimination aimed at LGBTQ+ elders by staff or other older people. Proper planning and memorializing those wishes in an estate plan can allow the elder person to age with the dignity and respect they deserve.
For non-married partners, planning is extremely important because, under the law, a partner is not going to have the standard rights to healthcare information and the ability to make healthcare decisions on behalf of their partner. A partner will not be able to access bank accounts if they are not in joint names and they are not able to make any and all decisions on behalf of their partner. Unmarried partners are not entitled to any inheritance in the absence of a will, trust, or proper planning.
Regardless of marital status, end-of-life decisions, the question of cremation versus burial, and any memorial arrangements should be documented to make sure your wishes are carried out as, again, both non-married and married partners may face significant challenges in carrying out your wishes in the absence of documentation.
In LGBTQ+ couples with children, only one parent might be the biological parent, or neither might be. They might have used an egg or sperm donor to conceive, or a surrogate to carry the child. There are varying rules across states about parental rights, but from a legal perspective, the biological parent is the one with the legal rights, barring any other court documentation. Even a birth certificate with both parents’ names on it may not be enough.
A last will and testament lays out who your assets should go to after you die. It also allows you to name a guardian for your minor children. It can help your family avoid disputes that might arise if there is not a plan in place or if it is not clearly stated. Additionally, trusts can be used to plan where assets go after you die and also avoid probate of your estate. This can be a cost-effective way to reduce conflict in the future and avoid claims against the elder’s estate from family who have been intentionally omitted from the planning.
As a result of what the community describes as continued discrimination and lack of inclusion, elders need to ensure that they have in place, at minimum, the appropriate documents, such as durable power of attorney, healthcare proxy; will, trusts (if warranted), and end-of-life directives in order to ensure their wishes can be carried out and their needs will be met in the event of an illness or death.
Estate planning can help to navigate through an increasingly complex legal system, and proper planning can protect your loved ones when they will need it most.
Julie Dialessi-Lafley is a shareholder with Bacon Wilson whose practice areas include estate planning and elder law, domestic relations and family law, and business and corporate law; (413) 781-0560; [email protected]