Unique considerations for LGBTQ estate planning
Unique considerations for LGBTQ estate planning
By Kirsten McMahon, Associate Editor
There are important estate planning considerations for LGBTQ individuals that take into account the unique needs and structure of their families, Toronto estates and trusts lawyer Suzana Popovic-Montag tells AdvocateDaily.com.
“While one of the first steps for any estate planner is to determine the marital and parental status of their client, it is key to recognize the differences in family structures one might encounter when assisting members of the LGBTQ community,” says Popovic-Montag, managing partner of Hull & Hull LLP.
These differences will impact the type of estate planning a lawyer might suggest and also serve as a reminder to fully inform clients about their legal rights if they are in a common-law relationship.
“Given the prevalence of common-law relationships and unique parenting situations, there are particular issues that are more pressing for LGBTQ individuals, such as potential incapacity and end-of-life planning,” Popovic-Montag says.
The laws providing who will be given priority in making financial and health-care decisions for an incapable person vary by jurisdiction. However, she says legal and biological family — such as spouses (sometimes including common-law partners), children and parents — will generally be favoured over someone who may have a close, but legally unrecognized relationship with the incapable person.
“Having difficult or non-accepting family members take over their finances and health care, when they are at their most vulnerable is likely the last outcome they would wish for,” Popovic-Montag says.
Even where an LGBTQ individual has a common-law or married partner who may have first priority, other family members who refuse to accept the relationship may seek court intervention, she says.
Appointing a power of attorney for health care and/or finance will not fully reduce the risk of other family members disputing the attorney’s appointment, but it will provide clear guidance to outsiders, including courts, as to whom an individual wished to have appointed to manage their affairs, Popovic-Montag says.
Transgender individuals, in particular, may wish to designate an attorney for their health care, “to ensure that someone who is supportive of their gender identity manages these decisions and acts as a strong advocate for them when receiving medical care.”
A U.S. survey conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force showed that 19 per cent of respondents were refused medical care due to their transgender status, 28 per cent experienced verbal harassment in medical settings, and 50 per cent reported having to educate their medical care providers about transgender care.
“Given the ongoing barriers faced by transgender individuals in medical care settings, it is crucial to choose the right people to ensure they receive proper and respectful care in the event of incapacity,” Popovic-Montag says.
Another concern for transgender individuals is the potential for the erasure of their identity — which could continue after death. She says careful estate planning can mitigate such risks.
“At common law, the right to determine the manner and burial of a deceased lies with the executor of the deceased person’s estate,” Popovic-Montag explains.
“In order to ensure that unsupportive family members do not control the manner of burial after death, an executor should be chosen carefully. In addition, transgender individuals should consider including provisions in their wills setting out their wishes as to the disposition of their remains and memorial planning.”
Another primary concern for LGBTQ clients is ensuring that their children will be properly cared for after death. This planning can be complicated by the lack of legal recognition of some unique family structures.
“Many people use assisted human reproduction, such as egg donors, sperm donors, and surrogates, in order to have families,” she says. “When relying on assisted reproduction, some parents may intend for the person who provided genetic material or acted as a surrogate to also be a parent of the child.”
A will that sets out the property or share of the estate that each child is to receive should be created. As the family expands, the will should be updated to account for all children.
“While jurisdictions across the country have grappled with the changing view of what constitutes a family, even provinces with the most progressive expansion of recognition of parentage do not fully encapsulate all parent-child relationships,” Popovic-Montag says. “For this reason, LGBTQ individuals should not rely on intestacy laws in providing for their children.”
By ensuring the proper safeguards are in place, she says LGBTQ individuals can rest easy knowing their wishes and their loved ones will be protected.