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Minnesota Lawyer Discusses Estate Planning for Married Couples in the Era of Trump.
The day after the 2024 election, our firm received numerous calls from the LGBTQ+ community who are rightly concerned about future attacks on same-sex marriage. With the strong possibility of future efforts to overturn or challenge established precedents like Obergefell v. Hodges—the landmark Supreme Court ruling that legalized same-sex marriage nationwide—you must take proactive steps to safeguard their rights and relationships.
One of the most effective ways to ensure your rights are protected, regardless of potential changes in the law, is by creating a comprehensive estate plan. This isn’t just about drafting a will; it’s about securing your future, protecting your partner, and ensuring that your wishes are upheld even in the event of legal setbacks. Here’s why you should consider hiring a qualified estate planning attorney now to set up an estate plan that protects you and your loved ones.
1. Marriage May Not Always Be Enough
While Obergefell v. Hodges currently protects the legal recognition of same-sex marriage, future Supreme Court rulings or shifts in federal or state policies could put those protections at risk. If same-sex marriage were to be challenged or overturned, it could cause a cascade of legal complications even for married LGBTQ+ couples. For example, inheritance rights, tax benefits, medical decisions, and survivor benefits are all tied to the recognition of marriage.
An estate plan goes beyond simply relying on a marriage certificate to ensure that your spouse is legally recognized in critical situations. With a solid estate plan, you can appoint your spouse as your legal representative in matters of healthcare, finances, and other vital decisions—regardless of potential legal challenges to marriage.
2. Wills and Trusts: Directing Assets and Protecting Your Partner
Even if you’re legally married, your estate may still face obstacles if something were to happen to you. Without a will or trust, your assets may not be distributed according to your wishes. In some states, the family members you might not have a close relationship with—such as estranged parents or siblings—could inherit your property, even if your partner has been your primary support system.
A qualified estate planning attorney can help you set up a will or trust that explicitly names your partner as your beneficiary, ensuring that your assets pass directly to them in accordance with your wishes. Trusts can provide an added layer of security by managing your assets while avoiding lengthy probate proceedings.
3. Healthcare and Medical Decisions: Protecting Your Partner’s Rights
If you are incapacitated or unable to make medical decisions for yourself, an estate plan allows you to name a healthcare proxy. This person will be authorized to make healthcare decisions on your behalf. Without a designated healthcare proxy or durable power of attorney, you could find your partner excluded from making critical medical decisions, especially in states where recognition of same-sex marriage might be in flux.
Estate planning also allows you to create advanced directives, such as a living will, to outline your medical wishes in the event you become seriously ill or incapacitated. These documents can give your partner the legal right to act on your behalf, ensuring your wishes are respected.
4. Guardianship and Parental Rights: Protecting Your Family
If you have children ensuring that both parents are legally recognized as parents is critical. In some states, even married couples may face challenges to parental rights if one parent is not the biological parent. An estate plan can address this by establishing guardianship arrangements, ensuring that your children will remain with the parent you designate if something were to happen to you.
Creating legal documents such as adoption paperwork (if applicable) or a legal guardianship nomination ensures that your partner is fully recognized as a parent under the law. This is especially important if you live in a state with less protective laws regarding LGBTQ+ families.
5. Planning for Future Uncertainty
An estate plan isn’t just about protecting your rights today—it’s about ensuring your wishes are honored if the political or legal climate shifts. By creating a will, trust, healthcare directive, and power of attorney with the help of an experienced estate planning attorney, you’re taking the necessary steps to safeguard your rights and secure the future for you and your loved ones.
An attorney will also help you navigate complex state and federal laws, particularly those that could change in the future, ensuring that your estate plan remains valid and effective, even if the law changes in ways that impact your relationship or family.
6. The Importance of Working with a Qualified Estate Planning Attorney
Estate planning is a nuanced and highly individualized process. While there are many online resources and DIY legal templates available, an estate planning attorney with experience working with LGBTQ+ families can help you avoid costly mistakes and ensure that your plan is robust, legally enforceable, and tailored to your specific needs.
A qualified attorney will be familiar with the unique challenges that LGBTQ+ individuals and couples may face and will provide you with peace of mind knowing that your plan covers all the necessary bases. From asset protection to ensuring your partner’s rights are respected, a skilled attorney will help you navigate the intricacies of the law and secure your future.
Conclusion
While it’s impossible to predict the future of LGBTQ+ rights under the law, taking proactive steps now to protect yourself, your partner, and your family is crucial. An estate plan is a powerful tool that provides legal safeguards, reduces uncertainty, and ensures your wishes are respected, no matter what political or legal changes might occur.
By working with a qualified estate planning attorney, you can create a plan that reflects your values, protects your rights, and secures your loved ones’ future—no matter what lies ahead. Now is the time to take action and ensure that your legacy, your relationship, and your family are protected, no matter what the future may hold. Contact Unique Estate Law today.