Editor’s Note: This article was originally posted in August 2019, and has become even more pertinent given recent developments in the Supreme Court.
Every day, I see people trying to erode the rights that our community has gained. The court system is being stacked with Judges who are not friendly to us or our having the same rights as the heterosexual segment of our population.
Those of us who are married have to be extra vigilant in protecting that relationship. The Supreme Court with its conservative majority could overturn Obergefell and every marriage between same-sex individuals could be made void. In order to protect ourselves, our families, and our rights we have to be proactive and create a comprehensive estate plan. An estate plan ensures that you decide who is involved in important decisions in your life, regardless of how the court system sways.
1. Will/Trust – A Will and a Trust, if your needs require one, are essential tools that are used to make your ultimate wishes known. Every one of us needs a Will. A Will lays out who gets your possessions when you pass away. If you are married or in a long-term relationship, protect the relationship and what you have built together by ensuring you have taken care of your spouse or significant other. If you have children under the age of 18, you need to ensure that they are taken care of and are with someone you trust if something were to happen to you. Some of us are estranged from our families and would not want them to have any control over our possessions and take those things away from our loved ones. A Will prevents that from happening.
Most people do not need a Trust. A Trust is best used by someone who has high-value assets, has someone who they want to control how they use the money, or for someone who wants to have complete control over their assets after they pass away. Keep in mind, having a Trust will not keep your estate out of probate but will reduce the amount of your estate that does go through probate. Only those assets that have been placed in the Trust or pass by operation of law, such as life insurance, avoid probate entirely. The problem with Trusts is that they are expensive to create, fund, and manage. Unless you have a large estate or a special and unique situation, I do not recommend Trusts.
2. Advance Medical Directive/Living Will – Advance Medical Directives/Living Will states who will make medical decisions for you and what your wishes are if you cannot make the decisions. This is an essential document. Your spouse or partner may not be recognized by a medical provider as your next of kin who is entitled to make these decisions. Do you want a relative who you are estranged from to make these decisions for you? If you have an Advance Medical Directive/Living Will, you clearly state who will make those decisions so your wishes are honored.
3. Durable Power of Attorney – Durable Power of Attorney’s let your Agent “step into your shoes” if something happens to you. This is someone who you trust to act as if they are you. A general power of attorney does not have any power if you are incapacitated. A durable power of attorney “survives” your incapacity or incompetence. This is important because if you incapacitated you still need your bills paid and your life to be taken care of regarding your home, children, investments, assets, and such.
I cannot stress enough the importance of these documents for every person, but especially those of us in the LGBTQ community. Rights written into law by the courts can be taken away by the courts. Protect yourself and those you love.
About Rachel Anderson
Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC and Board Member of HRBOR who specializes in estate planning and administration, business law, family law, and contracts.
Ms. Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or (757) 410-7943.
