Every year, when Pride month rolls around, I find myself grateful. My brother and I grew up in a place where people would roll down their windows and yell “F*****G” at my brother. I worried about his safety all the time, and this worry made me aggressive and over-protective in the extreme at times. When my brother discovered drag and became infamous, I started worrying again – but we lived in San Francisco and I realized we were free to be happy.
His son did not suffer this abuse, and he grew up in the same town, which tells me the world is a better place. And yet, in so much of the country, the LGBTQIA+ community is under attack. Bathrooms, passports, and fining teachers for using pronouns and preferred names. But then Boston becomes a sanctuary city and Salt Lake City changes its city flag to incorporate pride flags, in defiance of state law.
Estate planning is an act of love and protection—and for LGBTQIA+ families, it’s also an act of resistance.
Estate planning is more than deciding who inherits your assets. It’s about protecting the people you love, affirming your family structure, and ensuring that your values and wishes are honored during life, in the face of incapacity, and after death.
In 2024, California voters passed Proposition 3, enshrining marriage equality in the state constitution and repealing the harmful language of Proposition 8. While Obergefell v. Hodges (2015) federally guarantees same-sex marriage, Proposition 3 ensures California remains a legal stronghold for LGBTQIA+ rights, even as those rights are under attack in other states.
Why LGBTQIA+ Estate Planning Is Urgent
Nationally, we’ve seen renewed threats to LGBTQIA+ rights under recent administrations, especially targeting parental rights and bodily autonomy. Estate planning becomes a critical safeguard against these uncertainties, especially for families formed through marriage, surrogacy, adoption, or outside of traditional structures.
Four Key Considerations for LGBTQIA+ Clients
1. Confirmatory Adoption
Even if both parents are listed on a child’s birth certificate, many states do not recognize LGBTQIA+ parentage equally. A confirmatory adoption secures parental rights across state lines and can be completed in California without a home study or court appearance.
2. Second Parent Adoption
If the parents were not married at the time of birth, a second-parent adoption is necessary. This process is more complex, requiring a home study and court hearing, but it ensures that both parents retain legal rights no matter where the family travels or relocates.
Note: If you’re interested in pursuing adoption, we’re happy to refer you to trusted professionals.
3. Healthcare and Incapacity Documents
A comprehensive estate plan includes a power of attorney and an advance healthcare directive—tools that ensure your partner or chosen family can make decisions for you if you become incapacitated. Without these documents, your rights may be questioned, especially in crisis situations.
4. Beneficiary Designations and Trusts
We often see LGBTQIA+ clients who haven’t updated their retirement accounts or insurance policies. Ensuring your assets go to the right people—and avoid probate—is a vital part of estate planning. A living trust adds a layer of privacy and control that’s especially helpful for unmarried or estranged-from-family individuals.
Seven Essential Estate Planning Considerations for LGBTQIA+ Individuals and Families
Drawing from our Stonewall Was a Riot blog, here are five critical areas every LGBTQIA+ estate plan should address:
- Gender-Neutral Language
Legal documents should reflect and respect your identity. We use gender-neutral language in all estate planning documents, including guardianship nominations, to honor clients’ preferences and ensure inclusivity.
- Addressing Dead Names
To prevent emotional harm, especially when a legal name change hasn’t occurred, we use the preferred name with “also known as” for the legal name in documents. Clients are also encouraged to write letters to loved ones explaining the use of their chosen name.
- Preventing Re-Closeting
Older LGBTQIA+ individuals often face re-closeting in assisted living or in-home care settings. Our health care directives, powers of attorney, and trusts include language directing agents to work only with LGBTQIA+ friendly medical providers, preserving dignity and identity.
- Recognizing Non-Traditional Families
We acknowledge and plan for diverse family structures, including unmarried couples and chosen families. Our estate plans ensure that your loved ones are protected, regardless of legal or biological ties.
- Protecting Your Legacy
Estate planning allows you to deny assets and access to those who do not support you, ensuring that your legacy benefits those who truly matter to you.
- Access to Clergy:
In the Bay Area, the Sisters of Perpetual Indulgence provide end-of-life emotional support.
- Requirements to Source LGBTQIA+ competent health care providers
Re-closeting for aging community members can be a terrible end-of-life result.
Building Community: Our LGBTQIA+ Estate Planning Events
Earlier this year, we hosted “We’re All Gonna Die—Get Into It: Estate Planning for the Queer Community”—a powerful and affirming conversation about planning, protection, and the realities of queer life and death. We’ll be hosting another workshop this fall. Stay tuned to our Eventbrite page and join our email list for updates.
At De Fonte Law PC, we practice Estate Planning With Heart®, honoring the truth that every family is unique and every plan should be, too. We proudly serve LGBTQIA+ clients across California and are committed to protecting your rights with respect and intention.
We stand with you, and we plan with you.
The Unseen Burden of LGBTQIA+ Caregivers
LGBTQIA+ individuals often step into caregiving roles more frequently than their non-LGBTQIA+ peers, but at a significant personal cost.
Key Statistics:
- 58% of LGBTQIA+ adults aged 45 and older have been caregivers, compared to 34% of non-LGBTQIA+ adults.
- 78% of these caregivers report emotional stress, and 61% find it difficult to get enough rest.
- LGBTQIA+ caregivers are more likely to care for friends and chosen family, often without formal support systems.
Challenges Faced:
- Isolation and Stigma: Many LGBTQIA+ caregivers experience a lack of support, leading to increased feelings of isolation and stress.
- Discrimination: Fear of discrimination can prevent caregivers from seeking necessary resources and support.
It is critical that members of the community speak with the people who are counting on them:
- Talk about estate planning and insist that all documents are up to date
- Talk about insurance – health, long-term care insurance
- Talk about money – if the caretaker will suffer economically, can an inheritance make a difference?
Patricia De Fonte | De Fonte Law PC
Estate Planning with Heart®
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