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Gay Estate Planning

As long as you have not put your wishes in a legal writing, you risk losing the right to choose who you want to make vital decisions about your health care and finances.  Your partner will have no say or control over the disposition of your remains. More importantly, your partner will have no right to inherit your property, raise your children, and may not even have the right to visit you in the hospital.

Gay Estate Planning simply means that you anticipate you will someday become ill and die and are therefore doing something now to assure that your health care and finances will be properly managed and that your assets will be smoothly transferred to your loved ones or other beneficiaries.

There is a need to define the property rights of a couple by contract since very often no law recognizes gay relationships. A cohabitation agreement may cover virtually all of the issues addressed in a traditional marital agreement. Prudence suggests that cohabitation agreements follow the technical requirements of marital agreements and, accordingly, be in writing, signed by both parties and notarized.
There is an increased likelihood of challenge to our estate plans by hostile relatives. This fact overshadows all aspects of gay estate planning for the gay and lesbian community. Wills and other gay estate planning documents and devices for unmarried partners are more likely to be challenged by the testator’s biological family members on grounds of undue influence than would be the case if the partners were married. . "Courts consider...heterosexual spouses to be the natural object of a decedent’s beneficence, but regard...gay lovers as illegitimate beneficiaries whose undue influence over the testator unnaturally pressured the testator into an improper decision." 
There is a risk that AIDS-related conditions might impair judgment and function as it relates to approval of legal documents. There is a likelihood of periods of AIDS-related disabilities.
Gay and lesbian couples cannot utilize the marital deduction, the financial cornerstone of estate planning for a married couple. Therefore, gay couples must take advantage of other tax-saving, asset-protecting strategies.
A properly created estate plan is a foundation for an overall approach to asset management, insuring your needs will be met today and in the future. A properly drafted estate plan will provide substantial protection from both probate expenses and estate taxation. It will insure that your individual wishes will be realized, as you desire. Without proper documentation, all that you have worked so hard for and dreamed of can be lost and turned over automatically to relatives, whether or not that is your preference, or paid in taxes. With prudent gay estate planning, you control your assets and their ultimate disposition.
Proper gay estate planning is a great concern to the GLBT community. In the absence of legally binding documentation, the State directs the disposition of assets at death. Non-relatives have no standing to inherit within the state-determined disposition.
An important benefit of estate planning is the ability to designate and fund substantial contributions to non-profit organizations. In estates valued in excess of $675,000 (this figure is subject to change) it is important that gay men and lesbians consider charitable giving to reduce estate taxation and to direct assets to preferred recipients instead of the government. Ultimately, our community will benefit through the development and growth of endowments to permanently fund our organizations.

This brief information is meant only as a guide and is not legal advice. Each individual should consult with qualified professionals regarding their particular gay estate planning needs. States have provisions that supplement federal law and estate tax regulations. It is crucial to work with a lawyer familiar with your particular circumstances. Ultimately, a qualified estate-planning lawyer should draft the various documents that constitute a complete estate plan. There are four major areas of gay estate planning which have some degree of overlap. They are as follows:

1. Development of a  basic plan;
2. Disability planning;
3. Providing liquidity; and
4. Reducing gift and estate taxes.
   

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