Since the 2015 Supreme Court decision in Obergefell v. Hodges, from a Federal perspective LGBTQ+ couples have enjoyed many of the same marriage rights as heterosexual couples. However, LGBTQ+ couples may still face barriers that can make estate planning more challenging, particularly for couples who aren’t legally married.  

Why estate planning is important 

“An estate plan enables you to decide who can help with your legal, financial, and medical decisions if you become incapacitated, as well as how you would like to leave your assets when you die,” says Tracy Craig, a partner in the trusts and estates group of the Mirick O’Connell law firm. “Without an estate plan, your state law decides these things for you.”  

While everyone can benefit from an estate plan, LGBTQ+ couples may need to take extra steps to ensure their wishes are met, especially when it comes to navigating state law. 

“From a Federal law perspective, same-sex married couples are treated the exact same way as opposite-sex married couples,” says Craig. “[But] state law does not give you protections, if you are not related by marriage. There is no right to make medical decisions, manage assets, or inherit. All these rights must be affirmatively given in the estate plan.”¹

Additionally, about 42 percent of same-sex couples aren't married according to the U.S. Census Bureau, making an estate plan even more critical to planning for the future. Here are some questions you can ask yourself and discuss with your partner as you consider your estate plan.  

9 questions to consider about estate planning 

1. Who do you want to inherit your assets? 

Creating a will, which is part of an estate plan, lets you name beneficiaries for your assets and guardians for your children (if you have any). You can also choose an executor, who files the will with the court and helps manage your estate's affairs. 

2. Who should look after your children? 

If you have a child who wasn’t adopted by a non-biological parent, naming that individual as the guardian could be a good step. Craig suggests contacting a family lawyer who is familiar with your state’s laws for specific advice. 

3. What will happen to family pets? 

Also, consider who will look after a family pet if you both die. You could name a trusted friend or family member as the caretaker and leave them money with the explicit wish that they'll use the funds to pay for the pet's care. Or form a pet trust which creates a legal obligation for the trustee to use the money for pet care. You can also look into organizations that help find caretakers and sanctuaries that take in animals who need a new home.  

4. Have you named beneficiaries on existing policies and accounts? 

You can name your partner as the beneficiary of life insurance policies and your financial accounts. Unlike with a will, the assets can be passed on to named beneficiaries outside of probate, a legal process of recognizing the will and distributing an estate’s assets. This can save beneficiaries time and money. 

5. Can your partner speak on your behalf? 

You can use financial power of attorney and medical power of attorney forms to designate people who can make financial and medical decisions on your behalf. These can be, but don’t have to be, the same person.  

6. Are your health care wishes clearly written down? 

You may want to have a written medical directive, also called a living will or advanced health care directive, that specifies your wishes for what you want to happen if you become incapacitated.  

7. Have you looked into forming a trust? 

Many estate plans can also benefit from a trust that enables you to pass on assets outside of probate and save beneficiaries time and money. Trusts can also be set up to help support minor children or an adult who might need support. 

8. Will your family support your decisions? 

Family members can contest your will. You may be able to avoid probate issues and will contests by naming beneficiaries on your accounts or creating a trust. An additional step you can take is to make sure your will is very clear about who gets what and the reasons for your choices; don’t leave any wiggle room for someone to contest your rationale.  

9. Do you have to worry about estate or inheritance taxes? 

“For married couples who are both U.S. citizens, they can typically leave each other an unlimited amount of assets without having to pay estate taxes,” says Craig. “This is due to the estate tax marital deduction. Unmarried couples do not receive this benefit.” 

Most people don’t worry about estate taxes because for Federal tax purposes, U.S. citizens and domiciliaries can currently pass on over $12 million before the tax kicks in. (State estate taxes though may apply at lower thresholds.) But an estate plan can help families defer or minimize Federal and/or state estate taxes and state-level inheritance taxes. 

It's easy to delay conversations about death, serious injuries, and caring for children because these discussions can be difficult or uncomfortable. But you’re creating an estate plan because you want to make sure your family is protected and cared for when you're no longer here. And that is an act of love.