When I think about estate planning and the LBGT+ community, I think of the 1980s. I think about statutes that gave parents automatic authority to make health care decisions for an unmarried adult child and the impact that had on men dying of AIDS and their partners.
I think about the inability to marry and the highly complex estate planning that was required to protect partners, children, and other loved ones. Legal aid and legal services for the LGBT+ community have included estate planning for decades while most legal aid societies see estate planning as something to address as a postscript to other work.
The LGBT+ community has demonstrated that estate planning is foundational:
- Giving authority to people you trust to care for you when you cannot care for yourself.
- Protecting your partner or spouse’s privacy upon your death.
- Providing for your children (especially when adoption was prohibited and the laws of intestacy did not apply).
- Providing for your loved ones on your death.
- Denying assets and access to those who do not wish you well in this life.
- Insisting on dignity, remaining uncloseted, and respect for gender identity during a period of incapacity.
I am a proud and outspoken ally. I do not work with anyone who does not believe that #LoveIsLove.
Five Things Every Estate Plan for the LBGTQIA+ Community Should Address
1. Gender Neutral Language:
At De Fonte Law, we understand that language in law is everything. That is why using gender-neutral language is a value. Many clients do not refer to their children as she or he but as they not wishing to impose an identity on their babies and toddlers. Our nomination of guardianship form can address this specifically, giving instructions on gender fluidity and identity for a client’s minor children. We also work with many Trans clients. It is critical to include information in an advance health care directive about gender presentation requirements. Dignity in illness and incapacity is critical for everyone.
2. Dead Names:
The use of former names by which a client or their loved one is no longer addressed has a great potential for emotional harm. Where the individual has not yet legally changed their name, De Fonte Law PC uses the preferred name with “also known as” for the legal name, and we address the use of the dead name directly in the Statement of Intent in our revocable trusts. Our clients write letters to their loved ones explaining the use of the dead name.
3. Re-closeting:
Sadly, we have learned that the older members of the LGBTQIA+ community often suffer a re-closeting when they have to rely on assisted living or in-home care, often finding themselves in a conservative and often homophobic environment. We speak to all of our young clients about their older generation and what it means to advocate for them to avoid this offensive scenario. Our health care directives, powers of attorney, and revocable trusts all include language directing successors and agents to only work with LBGTQIA+ friendly medical providers.
4. Non-traditional families:
We have worked with married couples, unmarried couples, and throuples. We know that the bonds of a chosen family can be stronger than blood ties. Intestacy laws in California are clear and potentially severe. Helping clients navigate “who gets what” with a tax-efficient and loving approach is critical.
5. The right of publicity:
Everyone in California is famous, and their name, likeness, and voice are assets they can leave to whomever they choose. Many of our LBGTQIA+ clients have included this provision in their plan not because they believe their right of publicity could be monetized but to stop family members from using their name, likeness, or voice for, as one client put it, “conversion billboards.”
