With the rise of anti-LGBTQ+ legislation and political rhetoric and the complexity of family relationships, it is important for individuals who identify as LGBTQ+ to protect themselves from common pitfalls in estate and family planning that may not align with their wishes and intentions. Each state’s laws differ in this area, so having a properly drafted plan in place is imperative.
The importance of an estate plan — a last will and testament, health care directive and powers of attorney — cannot be overstated. There are also unique challenges with family planning and adoption. Consider:
Last will and testament: A decedent dying without a will is deemed to have died intestate. An intestate estate passes to the decedent’s next of kin as determined by the laws of the state that is the decedent’s domicile. Each state has its own intestacy laws, which vary depending on the decedent’s marital status and whether there are biological and/or legally adopted children. If the decedent was married, the surviving spouse usually receives a large share, or sometimes all, of the estate. However, if the decedent was not married and/or has children who were not adopted or biologically related, assets may not pass as the decedent would have intended.
Many states allow an individual to designate a funeral representative with authority to control the individual’s funeral. This can be done in a will or in a separate document. If a decedent does not designate a funeral representative, whoever is next of kin will have control. If the decedent’s gender does not match the gender on the decedent’s birth certificate and a funeral representative is not named, there is no guarantee that the decedent’s identified gender will be honored and respected.
Health care directive: Also called a health care proxy, advance directive for health care or power of attorney for health care, a health care directive grants to another person the right to make medical decisions in the event an individual is unable to do so himself or herself, as well as the ability to access the individual’s health care records. If an individual becomes incapacitated and does not have a health care directive, the next of kin will need to go to court for a guardianship proceeding or, if there is no time to do so, most hospitals will allow the next of kin to make decisions in an emergency. State law dictates the persons who may seek guardianship. Further, if an individual’s gender does not match the gender on the birth certificate, there is no guarantee that the identified gender will be honored and respected in a health care setting. It is important to name a heath care representative who will carry out agreed-upon wishes rather than rely on state law.
Power of attorney: This grants a designated attorney-in-fact the right to act for another person concerning financial and other matters. Executing a power of attorney does not limit the person’s right to act for himself or herself now, and the power of attorney may be revoked at any time. If a person becomes incapacitated and does not have a power of attorney, the next of kin will need to go to court for a guardianship proceeding. State law will dictate those individuals who may seek guardianship.
Family planning and adoption: A recent case in the Oklahoma County District Court, Wilson v. Williams, drew national attention when a judge ruled that Kris Williams be removed from the birth certificate and lose her parental rights to her ex-wife’s biological child, who was born during their marriage, in favor of the child’s sperm donor. The judge held that, because Williams did not officially adopt the child, nor did she carry the pregnancy, she could not establish a “mother-child relationship” under current Oklahoma law. The judge added that Williams was aware she would need to pursue adoption to secure parental rights, yet chose not to do so.
Thirty-four states have adopted a form of the Uniform Parentage Act, which was introduced in 1973 and revised in 2002 and 2017. The Uniform Parentage Act fully protects both married and unmarried same-sex couples and includes provisions protecting LGBTQ+ parents, including addressing children with multiple parents, parents using at-home insemination and parents using surrogacy. However, as of March 2022, the Uniform Parentage Act has only been enacted in California, Connecticut, Maine, Rhode Island, Vermont and Washington, and the legislation is pending in Hawaii, Kansas, Massachusetts and Pennsylvania. Further, many states hold that a birth certificate is not a legal parentage determination and there are strict requirements that must be followed to ensure a donor of genetic material or surrogate will not have rights to a child.
Although each state has different laws, as a general rule, it is advisable to obtain an order of adoption, order of parentage, acknowledgment of parentage or similar court order or adjudication. This is necessary to guarantee that the intended parents will be recognized as a child’s legal parents in all states. Some states, including New Jersey and New York, offer a streamlined second parent adoption process for same sex, transgender and nonbinary partners.
Conclusion: Due to the complexity and sensitive nature of planning for individuals who identify as LGBTQ+, it is important to speak with knowledgeable attorneys who can navigate the ever-changing laws. Proper planning can resolve potential problems before they arise. The Trusts and Estates Group in conjunction with the Family Law Group at Chiesa Shahinian & Giantomasi P.C. is well-versed in assisting with these needs.
Laura Feitelson is an associate at Chiesa Shahinian & Giantomasi P.C., where she represents and advises moderate to high net worth individuals and families on all aspects of estate, tax and business planning — as well as estate and trust administration matters.
