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The Importance of Estate Planning for LGBTQ+ Couples

The Importance of Estate Planning for LGBTQ+ Couples

The 1960s in the United States has been described as one of the most divisive decades in history riddled with political movements, antiwar protests, and an emerging generational gap. While a war was being fought overseas, a battle for individual liberties was being fought at home in the queer community.

The battle for equal rights in the LGBTQ+ community in Illinois has an extensive history. Illinois was the first state to begin decriminalizing aspects of homosexuality by revising its criminal laws. By 2011, Illinois passed the Illinois Religious Freedom Protection and Civil Union Act which allowed same sex couples to participate in civil unions. Civil unions are distinct from marriage in that they grant only some of the rights that marriage bestows such as owning joint property. Today, Illinois allows for same-sex marriages but not without complication, making it crucial to ensure that your estate plan includes all the necessary legal language and documents to safeguard your wishes and your loved ones.

Specific Estate Planning Documents and What to Include in Them

#1 Last Will and Testament
A will is a legal document that expresses your wishes regarding the distribution of your assets after death. In your will, you must name an executor of your estate who is responsible for executing your plan. Typically, the executor is your spouse or a trusted loved one. In same sex relationships, it is advisable to name your partner as your spouse in the will in order to avoid vagaries that could lead to a will contest. Wills have been contested by family members or heirs as to whether the decedent’s partner was their legal spouse.

Similarly, if you have minor children, you will name someone to be their guardian should something happen to you. Your will should state your partner’s name as the legal guardian instead of a generic statement such as “my spouse shall be the guardian”.

#2 Power of Attorney Documents
Power of Attorney Documents give someone else the power to make decisions on your behalf financially and/or medically in the event you cannot. In many cases, when a couple has been legally married for a long time, the State automatically grants the spouse the decision-making power. For example, in the event that you are unable to make your own decisions, a medical professional may look to the spouse to make those decisions regarding their partner’s medical care. However, there is no written rule guaranteeing this power. A doctor may not choose to grant this power regardless of marital status. For LGBTQ+ couples, although you may be legally married, it is imperative to create Power of Attorney Documents giving your partner decision-making authority. In doing so, you avoid allowing the state to determine whether your spouse qualifies for that power using their own discretion.

#3 Trust
A trust is a legal agreement whereby one party gives authority to another party to manage assets for the benefit of a third party. Many clients choose to create a trust that accompanies their will to avoid the probate process. Similar to your will, it is advisable to name your partner in your trust to ensure they receive their portion of your assets.

Hays Firm is Here to Support You and Your Family

Fighting for the same rights as heterosexual couples is not a new experience for many queer couples. Our lawyers at Hays Firm LLC are knowledgeable on the specific legal language necessary in each estate plan to ensure that the fight for rights does not continue even after you or your loved one has passed away.