The LGBT+ community has made strides towards equality over the past decade. In 2015, the Supreme Court of the United States legalized same-sex marriage in all 50 states with its opinion in Obergefell v. Hodges. In 2020, the Supreme Court held that gay and transgender people are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964. Bostock v. Clayton County. Though these are significant advances, much of the rights the LGBT+ community has fought for and obtained rests on nine unelected judges. And with the Supreme Court’s decision of Dobbs v. Jackson Women’s Health Organization, decisions like Obergefell, that rest on the substantive due process and the equal protection clause of the 14th Amendment, are not precisely etched in stone.

In December 2022, Congress and the Biden Administration passed the Respect for Marriage Act (RFMA). RFMA repealed the Defense of Marriage Act and required the federal government to recognize same-sex marriages. RFMA advances LGBT+ rights but is less far-reaching than one may think. The right for same-sex couples to marry in the United States still rests on Obergefell. If the Supreme Court were to overturn Obergefell as Justice Thomas suggested in his concurrence in Dobbs, the RFMA would not prevent states, like North Dakota, which defines marriage as a civil contract between a man and a woman, from once again refusing to issue marriage licenses to same-sex couples.

But what does all this have to do with estate planning?

As an estate planning attorney, I think estate planning is essential for everyone, but it is specifically crucial for LGBT+ individuals, including young people. Legal documents such as a Power of Attorney, Healthcare Directive, and Last Will and Testament ensure that you and those you love are protected no matter what happens in politics, the courts, or the legislature.

Power Of Attorney

A power of attorney is a legal document that grants someone else the authority to act on your behalf in financial, legal, or personal matters. This appointed person can make decisions and act as if they were you, providing assistance or representing your interests when you are unable or unwilling to do so yourself. This document can often circumvent Guardianship and Conservatorships if you become incapacitated. It also speaks to you who would prefer to be your guardian and conservator if needed. But why is this so important for LGBT+ individuals?

Take the case of In re Guardianship of Kowalski. This case focused on a lesbian couple living in Minnesota in 1991. Sharon Kowalski and her partner had been living together for four years, exchanged rings, and listed each other as beneficiaries on their life insurance policies. Unfortunately, Sharon was in an accident that left her incapacitated. Sharon’s father and partner petitioned to be appointed Sharon’s Guardian and Conservator. Sharon’s father won. Sharon’s father did not agree with her identity or lifestyle and, as a result, terminated her partner’s visitation rights. Sharon and her partner did not see each other for years. Thankfully, through the appeals process, Sharon’s partner was appointed as her Guardian and Conservator, and the decision was considered a victory for LGBT+ Rights.

What happened to Sharon is a real-life example of how important a power of attorney document is for LGBT+ individuals. When someone comes out, and their families are not accepting of their identity, the families might try to change their way of living. However, a power of attorney can help in such situations. A power of attorney allows individuals to maintain control over their lives, even if they become incapacitated. It helps protect their identity and ensures that their wishes are respected, despite any opposition from others.

Healthcare Directives

A healthcare directive is a legal document that outlines an individual’s wishes regarding their medical treatment if they cannot communicate or make decisions. It guides healthcare providers and loved ones about the individual’s preferences for life-sustaining measures, such as resuscitation, life support, and organ donation, ensuring that their healthcare decisions align with their personal values and desires.

Healthcare Directives are particularly important for the LGBT+ community due to potential discrimination, or lack of understanding LGBT+ individuals may face in receiving appropriate and respectful healthcare. For example, transgender individuals often require specialized healthcare, such as hormone therapy or gender-affirming surgeries, to align their physical characteristics with their gender identity. A healthcare directive allows them to clearly state their desires regarding these treatments and advocate for themselves to maintain control over their well-being and gender identity.

Last Will And Testament

A last will and testament, or will, is a legal document that allows you to specify how you want your assets to be distributed after your death and who should care for your minor children, if applicable. It ensures that your wishes are followed and provides guidance for the care of your loved ones.

A will is specifically essential for same-sex couples and same-sex couples with children because it allows them to protect their assets, clearly define inheritance rights and designate beneficiaries. As I discussed at the beginning of this blog, same-sex couples could face legal challenges, resulting in a lack of automatic recognition of their relationship. For example, suppose a gay couple were not legally married or lived in a jurisdiction where same-sex marriage was not legal. If one partner were to pass away without a will, the surviving partner might not automatically inherit their assets. Without a will in place, the laws of intestacy (which govern the distribution of assets when there is no will) may not recognize the surviving partner as an eligible heir. This could result in the deceased partner’s assets being distributed to other family members, potentially leaving the surviving partner financially vulnerable and without the resources they had built together. Further, without a will, the surviving partner may not be automatically entitled to make decisions regarding their partner’s estate, healthcare, or funeral arrangements. A last will and testament provides the means for a surviving spouse or partner to assert their rights and protect their interests, regardless of the legal recognition of their relationship or marriage.

Hopefully, the right of individuals to marry who they love will always remain a constitutional right. But even if the rights of the LGBT+ community were to be challenged or revoked, an estate plan addresses the unique challenges the LGBT+ community faces. It allows individuals to establish a legal framework that protects their autonomy, identity, and assets and provides for their partner’s well-being, regardless of the legal recognition of their marriage. Estate planning is about securing your future and affirming your rights, protecting your loved ones, and promoting your peace of mind.

Contributor: Ethan Johnson

If you need to create or update an estate plan or want to know more about the estate planning process, please contact the SW&L Estate Planning team at 701-297-2890 or email us at: info@swlattorneys.com.

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