Opening Hours / Monday – Friday / 08:00 – 18:00

Call us now: (801) 618-0699

Lgbt Estate Planning Attorney

First things first. If you’re an unmarried couple, regardless of whether you’re an LGBTQ couple or not, creating a solid estate plan may have added urgency for you. An estate plan can ensure that your relationship is recognized after one of you dies, and that the surviving partner has access to as many of the benefits of surviving spouses as possible.

1. Make a Will or Living Trust

A will or living trust is the heart of any estate plan. A will in particular is a simple and relatively inexpensive document that you may be able to make yourself. With a will, you can:

  • determine who will inherit your assets
  • nominate a guardian for your children
  • arrange for an adult to manage any assets children inherit, and
  • name an executor.

If you die without a will or living trust, your state’s laws of intestate succession will determine who inherits from you, and your partner of many years can end up with nothing.

You can make a simple will or living trust yourself with Ascent Law Firm. If you want a more complicated document, see a lawyer for help.

2. Take Steps to Avoid Probate

Probate is the court process of wrapping up your estate after you die. Probate can be a long and expensive process, and it’s rarely a benefit to your heirs. Avoiding probate may be more complicated for unmarried couples because, in most states, they can’t take advantage of laws that allow property to pass to spouses without probate.

You can avoid probate by using these estate planning tools:

  • Living Trusts
  • Transfer-on-Death Accounts, Registrations, and Deeds
  • Joint Ownership

Additionally, most states have simplified probate procedures for small estates. So if you don’t have much property, you might not need to plan for probate at all.

3. Make a Health Care Directive

Health care directives let you set out your wishes for end-of-life health care, in case you can’t speak for yourself. There are two pieces to a health care directive:

  • the living will or declaration, in which you state what kind of care you want or don’t want, and
  • the power of attorney (POA) for health care, in which you name a person to make health care decisions for you if necessary.

In some states, there two parts are actually two separate documents, while in other states, these two parts are combined into one. When you make a health care directive (or power of attorney for health care), you can designate your partner as the person you want making health decisions for you in the event you become incapacitated. This is especially useful if your family is unaware of, or has not fully accepted, your relationship, as it gives your partner the legal authority to make medical decisions on your behalf.

4. Make a Financial Power of Attorney (POA)

With a financial power of attorney, you give another person power over your finances. Again, if you anticipate incapacity, or just want to make sure that your partner has the legal authority to take care of your finances in case of emergency, consider making a durable power of attorney for finances.

5. Reduce Federal or State Estate Taxes

Most people don’t have to worry about federal estate taxes. (If you die in 2022, only estates worth more than $12.06 million will owe federal estate taxes.) State estate taxes, on the other hand, affect more people. However, not all states impose a state estate tax. Find out whether your state has an estate tax.

With federal estate taxes, all assets left to a surviving spouse—including a validly married spouse of the same sex are exempt from federal estate tax. But if you’re not married, the surviving partner won’t have this benefit. State estate tax rules vary. If you’re worried about estate taxes, you can see a lawyer or tax professional to discuss ways to reduce them.

6. Final Arrangements

As part of your estate plan, you and your partner should also consider making final arrangements documents. In this document, you can specify your wishes, in as much detail as you choose, about:

  • burial or cremation
  • embalming
  • caskets and urns
  • headstones or burial markers
  • ceremonies, and
  • paying for final arrangements.

While this document is not legally binding, it can come as great relief to those who must take care of these details after you die. Knowing what you wanted can calm concerns and put to rest any questions about your final wishes. This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest, or if you anticipate friction when your partner tries to assert your wishes.

You can easily create a final arrangements document by contacting Ascent Law Firm. In addition to helping you make a will, simple living trust, healthcare directive, and financial power of attorney, Ascent Law Attorney walks you through all of the issues listed above to arrive at a final arrangements document with as much or as little detail as you like about your final wishes.

Estate Planning for Married LGBTQ Couples

Even if you’re a married LGBTQ couple, you might want to consider whether a few additional estate planning issues apply to you.


  1. Check for Outdated Beneficiary Designations

While certainly everyone should keep the beneficiary designations on their bank, retirement, and IRA accounts and life insurance policies up-to-date, LGBTQ couples in particular should make a point of checking that their beneficiary designations are current. Why? Many people remove ex-partners as the beneficiaries of their accounts when they get divorced. Divorce, with its legal procedures for unraveling a relationship, acts as a natural point for people to reevaluate their estate plans and beneficiary designations. However, because same-sex couples were not universally able to get married before the Supreme Court decision in 2015, break-ups often did not involve an official divorce. Without this built-in reminder to unwind assets and check beneficiary designations, you might have left an ex-partner named as the beneficiary to a significant asset. So double check your accounts.

  1. If Family Conflict is a Factor, Consider a No-Contest Clause in Your Will or Trust

If you’re estranged from your family or expect family conflict over the property you leave behind, consider adding a no-contest clause to your will or living trust. A no-contest clause states that if someone (say, a disgruntled relative) challenges the validity of your will or trust in court, and then loses, they won’t inherit anything at all from you. These clauses give potential challengers pause, and may be of interest to some in the LGBTQ community, as well as anyone who anticipates family disputes after death. However, no-contest clauses aren’t enforced in every state. If you’re interested in adding a mechanism like this, consult a local estate planning attorney.

  1. Account for Children in Your Estate Plan

Even if you’re married, one spouse might not be the legal parent of one or more of your children. With respect to your estate plan, you’ll want to consider not only whether your children will inherit from one or both spouses, but also what will happen to your minor children if either (or both) of you die. If your family situation is complicated, consider looking for a family law or estate planning attorney.

Essential Documents You Need in Your Estate Plan

Unfortunately, without a comprehensive estate plan, partners in LGBT families can be shut out of important decisions, such as financial matters or medical decisions, if a spouse or partner becomes incapacitated. In addition, gay and lesbian families need additional protections to ensure that their children will be raised by their partner upon death if only one of them is the biological parent. If you are an LGBT family, here are some crucial documents that should be included in your estate plan:

  • Health Care Power of Attorney. In a health care power of attorney, you can designate whom you want to make your medical decisions if you are too ill or incapacitated to make them on your own. By having this type of power of attorney, you can ensure that your partner or other family members are appointed to make these important decisions on your behalf.
  • Living will. A living will allows you to state your wishes about end-of-life care, such as the use of feeding tubes and resuscitation if you are too ill to communicate them at that time. It will help your partner honor your wishes if you are terminally ill.
  • HIPPA authorization. A Hippa authorization gives your doctor and other health care providers the authority to provide information regarding your medical condition and your medical records to your partner, spouse, or another person that you designate.
  • Durable financial power of attorney. A durable financial power of attorney allows another person to handle your financial matters without the need to be appointed your conservator in probate court if you are unable to manage your affairs without help. You can ensure that your spouse or partner makes these decisions on your behalf by appointing him to do so in this document.
  • Will and trust. In a will, you can appoint a person as your executor, designate who you want to receive your property upon your death, appoint a guardian of your minor children, and more. Depending on your financial and family situation, you may also need a revocable or irrevocable trust to avoid probate and estate taxes and to meet special family concerns during your lifetime and after you die.

Estate Planning Tips for LGBTQIA+ Couples

We believe that Estate Planning is essential for everyone. And we also understand that LGBTQIA+ couples face unique concerns in this area. Despite any strides that have been made, same-sex couples must do everything they can to ensure their intentions and directives are respected and met, particularly after they pass away. 

Tip 1: Legally naming your partner or spouse is essential   

Even if you’re legally married, if you want your partner or spouse to have the authority to be able to make decisions for you, whether those are financial or medical, you should specifically name them in one of the many Estate Planning documents out there:

  • Durable Financial Power of Attorney (POA) – Authorizes someone to make decisions regarding your financial affairs if you’re incapacitated or unavailable to make them for yourself.
  • Living Will – Also sometimes referred to as an Advanced Healthcare Directive, a Living Will explicitly states your end-of-life care wishes should you ever be incapacitated and unable to express them on your own.
  • Medical Power of Attorney (POA) – This document gives authority to another person (for LGBT couples, it’s often a partner or spouse) to make any and all medical decisions for you if you’re unable to do so.
  • HIPAA – Essential for LGBTQIA+ couples, the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA) privacy authorization form gives doctors and healthcare providers consent to discuss and disclose your health condition and records with the person you designate. This authorization can be incredibly important should medical records ever be needed to confirm or establish mental capacity or medical condition after your passing in order to execute your wishes.

Tip 2: Same sex marriage domestic partnership and civil union is not the same

It’s important to understand that the federal government only recognizes what’s considered “traditional” marriage (that is, marriage between a man and a woman). As a result, guaranteed benefits and rights can widely differ depending on local state laws. Be sure you understand and know what you and your partner are entitled to under the law. This is especially important if you’re legally married in one state but move to another. Updating your Estate Plan to reflect the laws of your new home may be necessary. 

Tip 3: Proper Estate Planning can offer many benefits

In addition to protecting your spouse or partner, an Estate Plan can offer other financial benefits as well. For example, Estate Plans can help you avoid probate, potentially give tax advantages and, if using the right legal vehicle, may even offer you legal and creditor asset protection.

Tip 4: Ensuring your children go to your partner means appointing guardianship

If you share children, this may be one of the single most essential components that Estate Planning for LGBTQIA+ couples must address. It’s not uncommon for courts to step in and make decisions about guardianship for children. And often, the family of origin or another biological parent will be given preference. If you share a child, you can avoid any misinterpretations about who should step in by formally nominating your spouse or partner to be legal guardian of any children if you pass away or become incapacitated.

Tip 5: Much of a properly-prepared Estate Plan will remain confidential

Other than your Will, which becomes public record, most of your Estate Plan is private. This would include any Powers of Attorney (POA) you set up both medical and financial as well as your Revocable Living Trust. The power of privacy can be a blessing.

Tip 6: Failing to plan can be planning to fail for same-sex couples

Unfortunately, if you live in a state that does not recognize same-sex relationships or partnerships, when you pass away, without proper Estate Planning documents in effect, you will have died intestate. This means that if you pass away, your partner may not be legally entitled to anything this could include bank accounts, property, children, retirement accounts and other assets. The only way to fully ensure your family is protected is by having an Estate Plan clearly defined.

Tip 7: For LGBTQIA+ Estate Planning, attorney input may not be necessary

It’s true! You can fully protect yourself by contacting Ascent Law Attorneys. We have state-specific forms that are prepared by attorneys and knowledgeable experts. We can give you everything you need, for a fraction of the cost and time of using an Estate Planning attorney. 

Understanding what challenges may arise and what protection is available is essential for LGBT couples. Without a proper, legal Estate Plan in place, you may not be guaranteed anything. With Ascent Law Attorney, you can create a plan that’s equipped to protect you, your legacy and your loved ones. You can create a fully customizable, state-specific Estate Plan online in just 20 minutes.

Free Initial Consultation