With the growing number of common-law relationships, it is important to recognize the difference in family structures one might encounter when assisting LGBTQ clients. Not only do these differences impact the type of estate planning that a practitioner might suggest, it should also serve as a reminder of the importance of fully informing clients of the differences in legal rights that they and their partner will experience as common-law spouses.

Below are three steps LGBTQ individuals can take to ensure their wishes are carried out and their loves ones are provided for.

 (1) Prepare Power of Attorney Documents

First, LGBTQ individuals should ensure they have properly planned for potential incapacity by having power of attorney documents in place. If you experience a serious health problem that leaves you unable to make decisions on your own, it is important that you appoint a trusted friend or loved one who will be able to communicate your health care wishes. A Power of Attorney for Personal Care is a document that describes your health care preferences and names a substitute decision-maker who can make health care decisions on your behalf when you are no longer able to do so yourself.

Appointing an Attorney can be especially important for transgender individuals. Having a Power of Attorney is one way a transgender individual can ensure that someone who is supportive of their gender identity manages their health care decisions. This is one step an LGBTQ individual can take to ensure that they will have a strong advocate on their side in their time of need when receiving medical care.

(2) Make a Will

Second, LGBTQ individuals should ensure their testamentary documents make proper provision for their children. Relying on intestacy laws to provide for their children should be avoided at all costs. Careful will planning should be undertaken which takes into account the unique needs and structure of the family.

One way of ensuring that children are properly provided for is to name the individual children being benefited in the will. Rather than leaving an equal share of the estate to “my children” or “my grandchildren”, the will should specifically name the individuals to be benefited. Careful will drafting is one step an LGBTQ individual can take to ensure their loved ones are provided for after their passing.

(3) Provide Instructions for Funeral and Memorial Wishes

Finally, to make certain their legacy is left intact, LGBTQ individuals should provide their instructions for both funeral and memorial planning. At common law, the right to determine the manner and burial of a deceased lies with the executor of the deceased person’s estate. In order to ensure that unsupportive family members do not control the manner of burial after death, LGBTQ individuals will want to carefully choose an executor for their estate.

By following these three steps, LGBTQ individuals can rest easy knowing their wishes, and their loved ones, will be protected to the best of their ability.

Thank you for reading … Have a wonderful day.

Suzana Popovic-Montag and Jacqueline Palef