| Read Time: 5 minutes | Estate Planning
The Legal Documents Every LGBTQ Older Adult Needs

Estate planning is critical for everyone, whether you’re married, single, straight, or LGBTQ. Marriage equality became the law of the land in 2015, with the U.S. Supreme Court decision in Obergefell v. Hodges. However, because of historical and ongoing discrimination, those in the LGBTQ community who are aging often rely on partners or caregivers with whom they have no legal relationship. Thus, legal planning for LGBTQ elders is essential to ensure that the people you wish have a legal voice in your health care as you age and have the right to inherit as you choose. 

Estate planning can be very complicated. If you’re an aging member of the LGBTQ community, you need a comprehensive estate plan. To help you prepare your estate plan, the Law Office of Andrew M. Lamkin, P.C. has compiled this list of the legal documents every LGBTQ older adult needs to secure their future and the future of those they love. If you have any questions, don’t hesitate to contact us today.

What Do LGBTQ Persons Need To Do For Estate Planning?

At a minimum, the legal documents every LGBTQ older adult needs include the following:

  • A last will and testament,
  • A durable power of attorney,
  • A health care proxy, and 
  • A living will.

In addition to the primary estate planning documents, legal planning for LGBTQ elders includes other forms and documents that may be appropriate for you to consider depending on your situation. 

Last Will and Testament

If you are unmarried and die without a will, intestacy laws will divide your assets and distribute them to your blood relatives, not your family of choice. A will protects you from the laws of intestacy. It allows you to express your wishes in writing to ensure your property goes to the individuals you choose. 

If you and a partner are raising a minor child, and your partner has not legally adopted the child, a will is even more imperative. In a will, you can designate a guardian for your child and provide the guardian with assets to raise the child. Plus, you can describe your wishes concerning the child’s education and other important decisions involving your child’s future.

A last will and testament is a fundamental legal document in your estate plan. However, it provides the least amount of protection. If one of your relatives questions your state of mind or how you allocate your assets, they can contest your will in court. Plus, assets in a will are subject to probate. This can increase the time it takes for your designated recipients to receive their portion of your estate.

Depending on your relationship with your biological family members, you may consider including a no-contest clause in your will. A no-contest clause can help protect your will from being contested by an estranged family member or another person you purposely left out of your will. You should discuss whether to include a no-contest clause with an attorney.

Living Trusts

A living trust is a legal tool that allows you to place your assets into a trust and continue to use these assets during your life. In the trust, you’ll designate beneficiaries to whom the estate will pass when you die. One of the benefits of a living will is that the assets in the trust will avoid going through the probate process. Plus, your beneficiaries can avoid certain taxes usually taken from inheritances.

Durable Power of Attorney

A durable power of attorney allows another individual to handle your financial matters, including banking, insurance, and litigation. Suppose something happens to you. Your loved one may need to access your bank account to ensure your bills are paid. However, financial institutions will only permit this with a durable power of attorney. 

Health Care Proxy

A health care proxy allows another individual to make medical decisions on your behalf if you are incapacitated or otherwise unable to make the decisions for yourself. New York law allows you to select any person you trust to be your health care agent to make medical decisions when you cannot. Healthcare providers must follow your health care agent’s decisions.

Living Will

A living will is a document expressing your wishes relating to medical care if you are incapacitated. You can express your wishes on issues such as:

  • Life support,
  • Certain medical procedures or treatments that you do not want, and
  • Instructions for your health care proxy if you’re in a coma.

One of the primary benefits of a living will is that it gives your health care proxy clear instructions on your wishes, even when you cannot express them yourself. 

Beneficiary Forms

Many assets pass directly to your partner or other intended recipient by their designation as a beneficiary. This is typically the case with IRAs, 401(k) accounts, bank or investment accounts, and life insurance policies. Such assets can comprise a large portion of an individual’s estate. 

Many people designate a beneficiary and then forget about it. However, sometimes the relationship with that designated beneficiary ends or changes. You should review your beneficiary designations regularly to ensure they reflect your current intent. The beneficiary designations are legally binding documents that supersede a beneficiary designation in your will. 

Disposition of Remains Form

If you should pass without clearly stating your intentions, a family member may try to make decisions regarding disposing of your remains. A disposition of remains document allows the person of your choosing to make all decisions relating to the disposition of your remains and funeral arrangements. 

Health Insurance Portability and Accountability Act (HIPAA) Authorization Form

As you age, you may want your loved one to speak with your doctor about your conditions and treatment. However, without your specific authorization, your doctor will not disclose your medical information to anyone. A HIPAA authorization allows healthcare providers to disclose pertinent information and records to the person you designate.  

Contact Our Long Island Estate Planning Lawyer Today

Being proactive about estate planning is wise, especially as you grow older. When you are ready to take the important step of estate planning, the Law Office of Andrew M. Lankin, P.C. is ready to assist. Whether you are in a same-sex relationship or are an LGBTQ single, contact us today to help ensure your loved ones are positioned to carry out your wishes. Our knowledgeable and compassionate team will learn about your family structure, goals, and finances to craft the estate planning documents you need. Contact the Law Office of Andrew M. Lamkin, P.C. today online or by phone.

More Legal Resources

New York Attorney General

The New York Attorney General provides information on LGBTQ and same-sex marriage protections. This website also includes information on whether a specific law applies to you or if you believe you have been the victim of discrimination. 

New York State Bar Association

The New York State Bar Association provides New York health care proxy forms from the New York State Department of Health. It also includes information on the Family Health Care Decisions Act, which allows family members or designated loved ones to make decisions about your medical care if you lack the mental capacity to make these decisions for yourself.

The National Resource Center on LGBTQ+ Aging

The National Resource Center on LGBTQ+ Aging seeks to create and disseminate information, educational resources, and technical assistance regarding LGBTQ+ aging. They provide resources specific to New York. They also have a guide to engaging and supporting LGBT caregivers through programming.

Human Rights Campaign

The Human Rights Campaign (HRC) is a national organization advancing equality based on sexual orientation and gender expression. HRC works so that every member of the LGBTQ+ family can achieve equality under the law and live without fear. 

National Center for Lesbian Rights

The National Center for Lesbian Rights (NCLR) is a leader at the forefront of advancing civil and human rights for LGBTQ individuals and their families through impact litigation, public policy, and public education. NCLR is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families.

Lambda Legal

A national organization committed to achieving the full recognition of the civil rights of LGBTQ people. Lambda Legal fights for LGBTQ equality through impact litigation, education, and public policy work. 

Author Photo

Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.

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