Attorneys dedicated to
personal service and quality solutions.

Episode 3 – Estate Planning 101For LGBTQIA+

On Behalf of | Dec 26, 2022 | Podcasts

An exploration of the ways that LGBTQIA+ estate planning concerns are the same and the ways they are different.

Listen to the podcast here


Estate Planning 101 For LGBTQIA+

It’s always pride somewhere like it’s always 5:00 somewhere. There’s always an excuse to talk about the LGBTQIA+ community and how we serve those folks. That’s what I want to ask and hear from you. I am part of that community, so this isn’t theoretical, why would I choose to work with Norton Basu, and what would be my experience there? What would be the same?

For us, with any communities that we work with, there are issues that are going to be more germane to your life. There are going to be things that are more important and less important, but at the end of the day, it’s neither here nor there for us.

We are still going to tell you what distribution plan doesn’t work.

Somita’s going to tell you not to get married.

There it is.

That doesn’t matter whether you’re LGBTQIA+ or not. I’m always going to tell you that. She’s always also going to tell you that this is an impractical distribution.

I’m going to hold on to hope for your beautiful wedding that I would love to attend. Somita’s going to be like, “Do not get married no matter what you do.” If you do not invite me to the wedding, I’m not coming. That is very much going to be the vibe, straight or gay, it doesn’t matter at all. As with helping the Black community and minority communities, and all those things that we do, the underlying foundation there for us is always trying to help people who have maybe had less access to legal resources or also maybe haven’t had the opportunity to work with people who genuinely care for them, understand their issues, and want to make sure that they’re receiving the same level of service as anyone else.

At the end of the day, it’s respect for the clients. We respect our clients. We are here to help you accomplish what you want to accomplish. The only thing that could potentially be slightly more complicated is if you have family that you are not so close to. We want to make sure we deal with that appropriately. We have all sorts of families where couples or even single professionals are not close to their families, and how we deal with that is a sensitive matter. It’s something that we will have a very open and upfront conversation with you about.

That’s not exclusive to any one community. We have that conversation across the board all the time because family is crazy. Tyler Perry would not be a millionaire if his family was not crazy.

This is very true.

My family’s crazy and I’m not a millionaire. It doesn’t work out.

You mentioned a marriage, whether gay or straight, but it is a small percentage of the LGBT community that’s chosen to get married, but it doesn’t matter either way. What are the documents that they should have?

You should have a will, a revocable living trust, power of attorney, and an advanced healthcare directive. Those are the documents that are going to serve you both during your lifetime and once you’ve passed. The during-your-lifetime ones are the power of attorney and advanced healthcare directive. They’re incredibly important because if you wait too late where you’ve lost capacity, you can’t prepare those documents at that time.

You’re then left with somebody going to court to get appointed to be able to make those financial or medical decisions for you, and you have no idea whom that’s going to be. Maybe it’s some family member whom you don’t want to have that power over you. It’s super important to get that done. Do not wait until you’re like stage-six Alzheimer’s before you’re like, “Maybe I should get a power of attorney,” but you don’t know your own name.

The ship has left the dock.

There’s a saying, “There’s no such thing as too early, but there is such a thing as a second too late,” because if you don’t have the capacity and somebody needs to go to court to help make decisions for you, if it’s your partner, boyfriend, best friend, or whoever it is, but then your family member shows up and they want to have that control, the court has no way of knowing that your family member is not the preferred person. The court is always going to look at your blood relatives as having priority. These are things you have to think about.

Estate Planning: Suppose you don’t have the capacity to make inheritance decisions. In that case, the court will always look for blood relatives if you do not have a preferred person indicated in your estate planning documents.

Let’s say I don’t get along with my brother. I don’t want my brother showing up in court and making decisions for me. The court would never know that I’m not close to that particular person, even though they’re a blood relation. That’s how courts work. You need to be very clear about your wishes and make sure that you keep those documents updated and update them regularly as your life changes.

The person who might be your person now might not be the person in a couple of years.

She’s back to, “Don’t get married.”

Will and trust are important. We didn’t touch on them yet. You’ve passed, it’s not for you so much, but what you are doing is giving this incredible gift to your loved ones so that they don’t have to go to court, fight, and guess what you would’ve wanted. You’ve laid it out clearly, excluded the people you want to be excluded, and included the people, charities, or friends that you want to be included, and it’s all set in stone. Now, you’ve given marching orders to everyone you love.

People never fight over death. I’m checking on that one. You did talk about what’s the worst-case scenario if they fail to plan for death or incapacity. You have worked with some LGBT, maybe you could share some stories with us about some of the things in their estate plans that were the same and maybe some of the things that were different. I do know because some clients personally have worked with you and I’ve seen some folks from this community who’ve written reviews for you. Maybe you could share with us your thoughts, impressions, how you help them, and how you help might help others in the same boat.

As you said, the gay community, by and large, has followed Somita’s advice and most of them have not gotten married, and good for them. There are some extra precautions that we need to take because all of the defaults in the law that you would have for your spouse to be able to do something are not going to be there. Whenever there’s no default for the spouse, that means the default is for your family.

We’re back to that same conversation about sometimes family is not whom you want making these decisions. That’s probably the number one thing we’re thinking about. If the couple is not married, then we need to make sure that the documents are in place because that’s the only way those people are going to get the power to make decisions for you to inherit whatever because otherwise, they would be left out of the documents.

It’s important to have that conversation with your attorney very clearly and honestly. It’s very important that you feel safe and respected while you’re having this, which can, at some point in time, be a painful conversation about your situation and your relationship with your actual blood relations.

We’re going to get into your family dynamics.

We’re going to get into all the mess. We understand that this happens and it’s okay, but we need to make sure we understand the family history and background and your relationship with those people so that we can plan accordingly, and make sure that your documents reflect your wishes as they stand.

On the asset side, because you’re not married, everything is going to be separate property. Again, we don’t have that default of community property to pass everything to your partner. We need to make sure that the documents state that everything’s going to go to your partner in the way that you would like because otherwise, they’re going to be SOL.

Especially if you’re not married. This is one of the downsides of not being married. The law does not work in favor of your partner. You can overcome that with appropriate estate planning. If you do the appropriate estate planning and follow all of the advice that your attorney gives you. You dot your I’s and cross your T’s and you’re on your Ps and Qs, you can overcome that barrier relatively painlessly. You got to make sure you follow through on all the things that you’re supposed to do.

You want accounts that have maybe beneficiary designations or your trust is thorough and it’s fully funded. All your accounts are in the name of your trust so that your partner can have access to them if something happens to you. Your advanced healthcare and your power of attorney are updated. They’re not more than ten years old, and all of those kinds of things. That means keeping in touch with your attorney, and getting advice when your life changes so that you can update everything, but you should still be good if you do all of that.

One thing that I’ve noticed that’s changed in the LGBT community since I came into it many years ago is that a lot more LGBT families have kids. You did cover a lot of the important financial and legal reasons, but something that is much more common now is the custody of kids. Could you talk a little bit about how that relates to the LGBT community and how important that is for them?

You may have a situation where only one parent is the biological parent, and so the other parent is not going to have those automatic rights in order to make decisions for them, should something happen to the biological parent. That’s an interesting mix of family law and estate planning. Sometimes we do rope in family law attorneys to address some of these issues to make sure we’re buttoned up on all sides, but again, we’re going to hammer it home for you.

When you’re not married because the law favors you being married since it’s written by men, so the patriarchy wants this. If you don’t do that, you don’t get access to all of these defaults where you would be able to inherit things, control assets, be the guardian for children, and all of those things. That’s a big part of what we do for any couple or any partnership where there are kids. It is making sure who is going to take care of these kids and who’s going to manage the money on behalf of those kids. If that’s not written down somewhere, especially if you’re not married, the other partner has no rights, which is crazy when you think about it.

Estate Planning: In an unmarried partnership, the non-biological parent does not have any rights to manage money on behalf of the children if their name is not written down somewhere.

Unless they’re adopting them.

Yes, that’s right.

It’s difficult to do that if the partners aren’t married. There are a lot of challenges there on the family law side. The person who’s going to raise the child versus the person who’s managing the money does not have to be the same person. We tell this to people all the time. Maybe your friend Bob is great with kids but lousy with money.
We don’t want him managing the money.

We don’t want Bankruptcy Bob.

He’s smart and he’ll do arts and crafts with the kids.

The person who manages the money could be somebody completely different. That’s an important conversation to have so that we can advise you appropriately. We’ve had to referee some discussions being moms and dads, where the mom is like, “No matter what, it’s never going to be your sister.” The dad is like, “No matter what, it’s never going to be your brother.” They’re like, “There’s nobody else then.”

I feel like, at the end of that process, we’re usually making a referral to a family law attorney. We’re like, “Come see us again when you guys are going to do separate trusts because that’s where you’re headed or you’re in that town,” but we have had to referee those and dig into the meat of what is going on in these families.

One of the things that I didn’t expect when we got into this area of law is that it’s very much about family dynamics. Therefore, if you are not telling us exactly what mess is going on in your family, it’s hard for us to advise you appropriately. We need to see the mess.

By the way, if you don’t advise your lawyers appropriately about what’s going on, I can tell you right now how it’s going to end, and that word is litigation. I can guarantee. If we are not able to know what red flags are going to pop up and then be able to proactively prevent them from having any power or authority, I guarantee that we will be in litigation. By we, I mean your family.

That is a lose-lose situation.

We barely like it but we do it. We’re not emotionally attached to what’s going on.
You do not want that for your family, especially if in any way, shape, or form you have a blended family then it’s a recipe for litigation.

You don’t want to battle between stepparents and stepkids. It’s terrible.

There are movies about that and for a reason.

One of the things I mentioned was some of the changes I’ve seen in the LGBT community in the last few decades and some of which we’ve gotten quite used to pretty quickly. I know you guys agree with every Supreme Court decision wholeheartedly. For us in the LGBT community, we want to have an idea of what can we expect, what changes might happen, or at least how we could be prepared if things do change.

We all got a dose of that with not this president in 2022, but the one before. Let’s call him Singapore. When he was president, if you weren’t a straight White Christian male, you felt the effects of his being in power because the end goal was to strip away rights from everybody who wasn’t that. There’s always this looming threat, whenever your existence is political.

Gay people, Black people, any minority, and immigrants, your existence in this country is inherently political. You only have rights because they’ve been legislated. You’re not born with them. We have to fight for them. We continue to have to fight for them. Sometimes take 2 steps forward, 1 step back like Paula Abdul. We’re all doing that. She is our icon for fighting for our rights.

Anytime your existence is political, unfortunately, that means you got to deal with lawyers because you’ve got to protect yourself. You’ve got to figure out what I need to have in place to protect myself because no matter what happens, you want your family to be okay. California has gone back and forth on this. Gays could get married and then they didn’t, and then they were like, “Just kidding, now you can.” You always want to have your documents in place to protect your loved ones, just in case we end up again with a president like that, your family is not going to be harmed, at least in the sense of from the estate planning side.

Unfortunately, in the country that we live in now, it’s very possible that things can get rolled back as they are getting rolled back now for a lot of people. The thing is that you need to have a trusted resource that you can talk to in the state in which you live because marriage, at the end of the day, is very much a state issue. Therefore, you want to know what the state law says about my marriage, etc., and how that interacts with Federal benefits and etc. There’s an interplay here between what’s happening for the United States as a whole versus what’s happening in the State of California. Those two can be very different things.

Estate Planning: Marriage is a state issue. You want to know what the state law says about it to fully understand how to interact with federal benefits.

You want to make sure you have trusted resources that you can talk to when you’re uncertain or you see a headline and you think, “What does this mean? Am I still married to my partner or not? What does that mean for my work benefits? What does that mean for health insurance? If you work for the Federal government, but you live in California, what does that mean?” At the end of the day, you want to make sure that you are not left out in the cold. The only way to do that is to have experienced counsel and advice for all the different questions that you have. You can’t Google search your way into this.

Also, from a lawyer who gets it and who cares about your situation. You can go get it done maybe from some other attorney, but it’s so much better when you can get it done from somebody who you’re like, “They get me and understand. They care about what’s going to happen to my family,” and that’s what’s going into the conversations that they’re doing and the documents that they’re preparing for you.

You want an attorney who is as invested in your rights as you are.

That’s a great way to put it.

For us, that’s us. We are as invested in your rights.

We’re super humble and also very invested in your rights.

We are both of those things.

I’m thrilled to know you’re invested in my rights. I feel like it’s pride month every month at Norton Basu. I will be expecting my rainbow cake. Thank you all for joining us. Whether you’re a part of the LGBT community or another community, it’s important to understand these things and you probably know people who are. Thank you both for addressing that topic now. We’ll catch you next time.

Important Links