Everyone should have a solid estate plan no matter what their sexual orientation. Estate planning for the LGBT community, however, is critical. It will provide protection even in the face of discrimination and when people may not be willing to recognize your relationship, even if married. The necessity of an estate plan is needed for times of incapacity, such as an illness or accident. Without an estate plan in place the parties may leave their spouse or partner without the ability to make any decisions on their behalf.
The case U.S v. Windsor allowed federal benefits to be made available to spouses in same sex marriages. In the matter the U.S. Supreme Court struck down the Defense of Marriage Act, which was a federal law which defined marriage as between a man and woman ONLY. The case made sure to allow all married couples to be treated equally under federal law. Later, in Obergefell V. Hodges, the Supreme Court ruled that there is a constitutional right to get married, which includes same sex marriages and that same sex marriages in one state must be recognized by all states. Finally! U.S. Supreme Court ruled that the Constitution allows for same-sex couples to marry, effectively overturning remaining restrictions in place in states. Just because the Supreme Court ruled on marriage equality does not mean that discrimination and resistance towards same sex couples does not exist. Unfortunately, we know otherwise.
The right estate plan can help alleviate any potential issues allowing same sex married couples to get all the state and federal benefits and avoid probate and maintain privacy. For unmarried same sex couples, the right estate plan can allow the partners to make health care decisions on each other’s behalf, make financial decisions on each other’s behalf and allow one another to inherit from each other all the while avoiding probate. If minor children are involved, a proper estate plan can allow the couple to nominate a Guardian and Custodian for the children. I am not sure why anyone would risk not having a proper estate plan in place for themselves.