The LGBTQ+ community has many unique issues to deal with, and estate planning is no different. This is because a large number of LGBTQ+ families are unmarried and have kids where one parent is not the biological parent. And, with these issues come estate planning issues.
Parenting versus parental rights
It may come as a shock to many LGBTQ+ couples with children that one or both of the parents may not actually have parental rights. And, it may come as an even bigger shock that they could lose their child if the biological parent dies. This happens with LGBTQ+ couples as both generally cannot be the biological parent. This means that one or neither spouse may be the biological parent, who by default have parental rights.
Of course, even if both parents are not the biological parents, if there has been an official, court approved, adoptions by both spouses, both have parental rights. However, even for parents where both spouses are on the birth certificate, there may still be additional steps required to ensure both parents have parental rights. This can be done as part of an estate plan, but it is best to do so with the assistance of an attorney. The process can be complicated, and if not done correctly, one could, potentially, lose their child.
Power of Attorney
For those LGBTQ+ couples that are unmarried, the law treats them, essentially like strangers. This means that if one person dies, the other person will get nothing, unless it is spelled out in a will. In addition, it also means that if one spouse becomes incapacitated or is in a healthcare crisis, the other spouse will not be able to dictate care.
This is where a health-care power of attorney or health-care proxy become important. They will authorize the other spouse to make decisions for one’s medical needs, if one cannot make them for themselves.
Similarly, this is also where a durable power of attorney plays a similar part, except for one’s finances. Essentially, it gives the other spouse access to the finances of the other to ensure that they can pay bills and manage financial accounts.
A living will (otherwise known as an advanced directive) tells one’s health-care proxy how they want to be treated. This can help the proxy make decisions because they will know what their spouse wants.
For San Diego, California, LGBTQ+ families, estate planning is essential. And, as one can see from this very brief introduction, it is best done with an attorney.