LGBTQ marriages are now recognized by all states and the federal government. This has created a major change in the planning for LGBTQ couples in Riverside and San Bernardino Counties. While this is good news for wedded LGBTQ couples, the changes in the law do nothing for the thousands of unmarried gay couples in California. This makes it more important than ever for LGBTQ couples, married and unmarried, to have a comprehensive estate plan in place. Any planning done by a married LGBTQ couple prior to 2016 should also be reviewed because of the change in the law.
Unmarried LGBTQ Partners
Unmarried gay or lesbian partners are still considered “legal strangers” under the law. The need for an estate plan for unmarried LGBTQ partners is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without a proper estate plan, the other partner could be legally precluded from having any role in the decision-making of his or her partner’s care, managing his or her affairs, or even having access to the incapacitated partner.
The death of an unmarried gay or lesbian partner in Riverside and San Bernardino Counties without proper estate planning will result in the blood relatives of the partner inheriting and the surviving partner left without any rights at all. In addition, the blood relatives of an unmarried LGBTQ partner will have priority for appointment as the administrator of the deceased partner’s estate.
Registered Domestic Partnerships in Riverside
Many states and local jurisdictions, including California, offer domestic partnerships, civil unions, or similar methods of legal recognition for LGBTQ relationships. The rights and responsibilities of registration vary substantially from jurisdiction to jurisdiction. In California, a registered domestic partner has most of the same rights, duties, and liabilities as a legally married spouse.
After the change in the federal law regarding the recognition of gay marriage, some states, such as Washington, automatically converted registered domestic partnerships between LGBTQ couples into marriages. This is not the case with California. Each couple needs to decide whether they wish to continue to be registered domestic partners or if they will get married.
California Registered Domestic Partners own property acquired during the partnership as community property. Legal separation after becoming registered domestic partners in California will usually require a dissolution proceeding in the Family Law Court.
You should seek the advice of a qualified estate planning attorney who is familiar with the unique legal and personal needs of the LGBTQ community before deciding to forgo the advantages of marriage in favor of the rights and liabilities created under a registered domestic partnership. The attorney can counsel you on the implications of registration and advisability of registering in your unique situation. The estate planning and tax attorneys at the Riverside law firm, Dennis M. Sandoval, a Professional Law Corporation, have the expertise needed to answer all your questions.
The Problems Estate Planning Solves for the LGBTQ Community
An LGBTQ couple can avoid numerous problems through having a comprehensive estate plan in place. This would include:
- Advanced Health Care Directive. An Advance Health Care Directive can avoid the potential problems of an unwanted blood relative controlling the health care decisions of an incapacitated LGBTQ partner. Without an Advance Health Care Directive, an unmarried LGBTQ partner may not be able to offer any input into the health care decisions of his or her incapacitated partner. Whether the LGBTQ couple is married or not, the Advance Health Care Directive allows the incapacitated partner to select the primary and contingent persons who will make health care decisions for him or her, as well as designate the level of care desired in the event the incapacitated partner is terminally ill and incapable of enjoying any quality of life. The Advance Health Care Directive can also contain information regarding your preferences regarding organ donation, personal care, and living arrangements.
- HIPAA Authorization Form. HIPAA, the federal Health Insurance Portability and Accountability Act, prohibits doctors, hospitals, and other health care professionals from releasing protected health information. While well-intentioned, this law often makes it difficult for loved ones to speak with health care providers and obtain information. The HIPAA Authorization Form allows a partner to pre-designate the persons to whom permission is granted to speak with doctors and other health care professionals.
- Durable Power of Attorney for Property. A DPOA allows each partner to designate the person or persons who will have control of finances in the event of incapacity. The durable power of attorney allows the designated person to continue to pay bills, access bank accounts, and speak with companies or organizations with which the incapacitated partner has continued dealings. Not all durable powers of attorney are the same. Depending on the circumstances, you may need a DPOA that contains provisions for dealing with retirement assets, such as IRA and 401(k) plans; with the lease, sale, and encumbrance of real property, changes in a beneficiary designation on an annuity or life insurance policy, or modification of an existing trust and/or creation of a new trust. In addition, in cases where long-term Medi-Cal or Veterans Aid and Attendance eligibility may be needed in the future, the DPOA should contain provisions authorizing the agent to transfer or gift the assets of the principal, even if such transfer would be considered an act of self-dealing.
- Last Will and Testament. A Will allows the Testator to choose who will be in charge of his or her estate. It also designates who will receive your assets and the manner in which those beneficiaries will receive the assets. Many persons are under the impression that a Will avoids probate. This is not true. If the estate is large enough, it may be desirable to have a trust included as part of the estate plan. If a trust is prepared, the attorney should also include a “Pour-Over” Will as part of the estate plan.
- Revocable Living Trust. A revocable living trust allows the partners to plan the management of their finances both during incapacity and after death. A revocable living trust is like a treasure chest that holds assets. The trustee is the person or entity that has the key to the treasure chest in the event of disability or death. Because title to the assets is owned by the revocable living trust, there is no “estate” to probate upon death. There are many low-priced purveyors of revocable living trusts, but these companies typically will not assist with transferring assets to the trust. If assets do not get into the treasure chest while you are alive, the heirs will be forced to probate the decedent’s estate. In that event, that bargain revocable living trust may not be such a bargain after all.
A comprehensive estate plan prepared by Riverside estate planning attorney Dennis M. Sandoval, a Professional Law Corporation ensures your assets are distributed to whom you want, when you want, and how you want. A comprehensive estate plan can also guarantee privacy and asset protection for your partner and your designated beneficiaries. Proper estate planning also assures that any minor children born to, or adopted by, an LGBTQ couple are raised by the persons designated under the plan and that the children are cared for in the manner the couple designates.
Contact a Riverside LGBTQ Estate Planning Attorney Today
No other law firm in Riverside has more experience in estate planning for gay, lesbian, bi-sexual, and transgender partners. We are very familiar with federal and state law as well as the Registered Domestic Partner laws in California. We can advise LGBTQ couples as to whether registration or marriage is right for them. Our attorneys are Certified Estate Planning, Trust, and Probate Law Specialists, and are also Certified Taxation Law Specialists. For LGBTQ groups striving to educate their membership, Riverside LGBTQ estate planning attorneys Dennis M. Sandoval and Pamela Y. Valencia are available for private or public presentations. Contact our Riverside office at 951-888-1460 or contact us online to learn more about how we can help.