Minnesota Lawyer Discusses Estate Planning for Married Couples in the Era of Trump.
As noted in my prior posts, the fear of a pending Trump Administration has caused numerous LGBT individuals to call my office asking how to protect themselves and their families.
While, it is unclear what the new administration plans to do regarding LGBT rights, it’s important to plan now to limit any potential stripping of hard-fought rights. I try to be optimistic, but recent appointments have not helped on this point. So, hope for the best and prepare for the worst it is!
When marriage laws passed, many couples decided that marriage was the best estate plan. Your legal spouse has the priority to be first in line to inherit from you, make your medical decisions, handle your financial matters. But, keep in mind that all of the above will take a court interpretation/appointment unless you have the proper documents in place. That’s true even if you are legally married.
But, if the right to marry is in jeopardy, and you travel to a place that no longer recognizes this right, that could change. Below is a list of essential documents you should have in place to protect you and your family.
A Will addresses who will control your estate (assets) after your death. Most importantly, under Minnesota law it’s the only way to nominate someone to act as guardians of any minor children. These issues are all especially important for unmarried individuals. In most states, an unmarried partner does not have inheritance rights, so any property owned by his or her deceased partner would go to other family members. Also, in the case of many gay and lesbian couples, the living partner is not necessarily the biological or adoptive parent of any minor children, which could lead to custody disputes in an already very difficult time. Therefore, it’s critical to nominate guardians for minor children and get an adoption if appropriate (see post #2).
Financial power of attorney
A power of attorney (for financial matters) dictates who is authorized to manage your financial affairs in the event you become incapacitated. This is true even if you are married. A spouse will not be able to talk to a 401(k) administrator or take a hardship loan or sell a home without having a power of attorney in place.
Advance healthcare directive
I have read that the new administration plans to immediately undo President Obama’s executive order allowing LGBT couples automatic hospital visitation rights. To avoid this, get a Health Care Directive now.
A Healthcare Directive informs caregivers as to who is responsible for making healthcare decisions for someone in the event that a person cannot make them for himself, such as in the event of a serious accident or a condition like dementia.
HIPAA Waiver – allows the persons named to discuss your care with a doctor BUT not to make decisions. You may want this for a family member so you can have him/her involved in discussions about your care even if he/she can’t make any decisions.
These documents are important in protecting you from an uncertain future even if you are legally married. But, they’re critical if you’re not!