Estate Planning for LGBTQ Families and Individuals

Estate Planning for LGBTQ Families and Individuals

Estate Planning for LGBTQ…

The 2015 U.S. Supreme Court decision on marriage equality has made it easier for same-sex couples to marry and to inherit from one another as married couples do. Before marriage was an option, same-sex couples had to construct elaborate estate plans to establish some of the rights that opposite-sex married couples had under the law.

Although marriage equality has made things easier for LGBTQ individuals with regard to making sure a partner can inherit, it has not eliminated the need to put in place a comprehensive estate plan. Just as opposite-sex married couples should have an estate plan, LGBTQ individuals and couples need to put a plan in place to meet their needs. Some of those needs are universal, and some are specific to the circumstances of same-sex couples and their families.

Estate Planning Challenges Facing Same-Sex Couples in Texas

Estate planning should be a priority for all parents of minor children, and especially for same-sex couples in which one or both parents are not the children’s biological parent. A child who was adopted into, or born into, a family with same-sex parents needs to be specifically identified in all estate-planning documents.

This is especially true if only one parent is the child’s legal parent. While the child may see the other adult as a parent, Texas law does not. Without an estate plan, the child would not inherit from the adult who is not their legal parent. And if the child’s legal parent were to die without having appointed a guardian, their partner would have no legal right to continue raising a child to whom they had no legal relationship. This is true even if the partner had been acting as a second parent since the child’s birth. It is conceivable that a biological relative the child had little relationship with could be appointed as guardian.

Same-sex couples can provide for inheritance rights and guardianship for their children through simple estate planning documents, including a will.

Couples with and without children should create an estate plan not only with death in mind, but the possibility of legal incapacity. All couples should have powers of attorney for financial matters and health care. These documents allow people to appoint a person they trust as their agent, to make financial and/or medical decisions on their behalf if they become legally incapacitated.

This is essential for same-sex couples who are not married to one another. A common scenario is for one partner to suffer a sudden illness or injury, and for their legal next-of-kin (often parents or siblings) to disagree with the partner about medical decisions or financial matters. Without a power of attorney, it is possible that a family member from whom a patient was estranged could be given power over their finances and healthcare, freezing their partner out.

If you are a member of a same-sex couple, it is also important to think about how each of you owns property, and what you want to happen to your assets. If you are not married to your partner, but you live together in a house they own, you would have no legal right to the house if they were to die without an estate plan. Even if you both have ownership rights in the house, how the ownership is legally described determines whether one of you becomes sole owner when the other dies—or whether one of you will share ownership with the deceased partner’s next of kin.

Extended family tensions can happen in any marriage or relationship, but they are common in same-sex relationships, especially if one partner’s family disapproves of the relationship. If this sounds familiar, you will want to make legal provisions for end-of-life care and create a plan for your funeral in order to avoid unnecessary.

Houston Estate Planning Attorney for LGBTQ Individuals and Couples

These are only a few of the many estate planning issues facing LGBTQ individuals. What it boils down to is this: if you don’t make an estate plan to protect your spouse or partner and children, the state of Texas will make an estate plan for you—the law of intestate succession, or inheritance when there is no estate plan in place. This law prioritizes legal relatives and does not recognize long-term relationships.

Not creating an estate plan could mean losing your relationship with a child, being kicked out of your home, or being kept from a dying partner’s bedside. If you are transgender, not having an estate plan could mean being misgendered and called by your deadname at your funeral and on your tombstone, and having your estate go to a family from which you are estranged.

Avoiding these outcomes is simple. Work with a Houston estate planning attorney who will listen to you and help ensure your final wishes are met. Contact Bashirah Martin to schedule a consultation and get the peace of mind you deserve.

Frequently Asked Questions

How Do I Choose a Business Entity?

The type of business entity you choose will depend on how many owners the business has, potential exposure to liability, and how you want to pay taxes on the business. Available business entities include C corporations, S corporations, partnerships, limited partnerships, and limited liability companies. If you own the business by yourself, you can run it as a sole proprietorship.

It’s best to discuss the pros and cons of each type of business entity with a business law attorney who understands your circumstances and goals and can direct you to the form that is right for you (as well as preparing the documents needed to establish your business and register it with the state).

Do I Need an Employer Identification Number for My Business?

You may be able to avoid getting an employer identification number (EIN) for your business if you have a sole proprietorship or a single-member limited liability company (LLC), but most businesses need to have an EIN, which functions as a tax identification number with the IRS. Your business uses this number to file tax returns, open business bank accounts, and apply for various licenses. If you are not required to have an EIN, you may be able to use your Social Security number, but this may expose you to identity theft. It’s better to obtain an EIN for your business; your attorney can help you with the process.

What is the Difference Between an Employee and an Independent Contractor?

Whether someone who does work for your business is an employee or an independent contractor depends on the level of control your business exercises over the relationship. For instance, can your business control what the worker does and how they do their job? Does your business reimburse the worker’s expenses, or provide tools and supplies? Does your business offer the worker a retirement plan, vacation pay, insurance, or other benefits? Does the worker perform similar work for other businesses, or only for your business?

Whether a worker is an employee or an independent contractor makes a difference from a legal and tax standpoint. Employment and labor laws do not apply to a worker who is an independent contractor, and no taxes are withheld from an independent contractor’s pay. Employees, on the other hand, have Social Security, Medicare, and income taxes withheld from their pay.

Do I Need an Estate Plan for My Business?

Yes, you do! Planning for a business after the death or retirement of an owner is called succession planning, and it is essential to making sure the business is successful after a smooth transition to the new owner. If you have put a lot of effort and resources into building your business, don’t let it all go to waste by failing to plan—especially if you want the business to keep providing for your family after you’re gone.

For More Information

Contact us to discuss your legal issue and learn how we can accomplish your goals and protect your interests.

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