“May you live in interesting times.” While the attribution of this quote is in doubt, there can be no doubt about its effect. We do live in interesting times. This is especially true for the LBGTQIA community as politicians, judges, community organizations and social media appear focused on calling into question the rights of the community.
What can we do to advise our clients to make sure they have financial and legal protections in place to protect, as much as possible, against these possible changes — or even just as part of good planning?
As my colleague, Deborah Danger, Esq. shared in her 2021 column, “our gay and lesbian clients are motivated by fear and anger.” Sadly, this is still true, and it’s now expanding to include increasing attacks on the transgender community’s ability to access healthcare, especially for transgender youth.
Lessons from Dobbs and Covid
We don’t know what the government and courts — federal and state — will propose, or be successful in passing. While the 2015 Obergefell decision legalized same-sex marriage, federally (and by extension in all 50 states), as we saw with the Dobbs decision, federal court decisions can work in the reverse by allowing states to resurrect more restrictive laws, or enact new restrictive laws under the guise of the following the Supreme Court decisions.
Should that ever be the case in the future, we don’t know the impact it may have on our clients’ existing plans.
Strangely enough, Covid is a great example of how we can help our clients prepare. We couldn’t control the movement/progress of a pandemic; however, we could control how we responded to it. Covid motivated many people to “get it done” – estate planning, financial planning, buying a home, etc. We can work with our LBGTQIA clients to apply those lessons to our current circumstances.
Two-thirds of all couples are unprepared
According to the 2021 National Census, there are 1.2 million same-sex couple households in the U.S. – 710,000 are married, 500,000 unmarried. If the general population trends hold, according to Caring.com, only one-third of us have any kind of estate plan in place. This is especially important for same-sex couples, married or unmarried.
According to the 2021 Census, same-sex couples and households still, generally, have a higher median income than opposite-sex couples:
- $103,000 same-sex couples
- $116,800 male-male couples
- $102,800 for married opposite-sex couples
- $92,470 female-female couples
Not having a plan in place, especially for individuals and non-married couples, may result in those assets passing under the intestacy (no wills) laws of the client’s home-state. It may also mean a person, not of our client’s choice, is administering their assets. This is true today, as well as potentially true in the future.
For instance, in my home state, Massachusetts, if one spouse passes without a will those assets do not necessarily go 100% to the surviving spouse. Instead, if the decedent has living parents, or has children from another relationship, assets may go to those individuals. Our clients may not want these individuals to benefit from their estate assets.
In some states, mine included, if the couple is not legally married, the partner is not contemplated in the state’s intestacy law at all and cannot financially benefit from their partner’s “estate.”
Beyond inheritance
Not having a plan in place is more than just having a will. Not having a properly drafted and executed power of attorney and a health care proxy/health care directive/health care power of attorney may also mean a spouse or partner could be denied medical access to their spouse or partner and not able to communicate his or her wishes.
They may also be denied access to finances that are necessary to keep the couple’s financial life moving smoothly. This is especially important for trans people in general, as their family of origin may not be accepting of their identity and could impose their values with respect to healthcare decisions. All this was true during the height of Covid as well.
Value of professional advisors
As Deborah Danger shared back in 2021, “In my state, the law at the time same-sex marriage was made legal required that marriage automatically voided a newlywed’s most current will. The assumption was that the newlyweds would want each other to inherit their marital assets and might die before they made time to draft a new will. Imagine my clients’ shock and awe when they discovered that their recently won right to marriage also automatically negated their carefully crafted and complex estate plans.”
Conversely, we don’t know what will be “undone,” if any of the current laws change (state or federal).
Additionally, AI and DIY plans have grown exponentially since 2021, not always with positive effect. Relating to the above statement, AI and online programs won’t keep our clients up to date on what any new laws or repealed laws may mean for their planning — financial and estate.
This is an opportunity for us to reinforce our value to our clients by staying in touch with them and helping them with the very real anxiety and fears about “our interesting times.”
Kerry Reilly, an attorney with DangerLaw LLC in Newton Upper Falls, Mass., focuses on the 99% and solo agers. She previously had a 15-year career at Fidelity Investments, was a securities attorney and in-house counsel with Citi Financial Services, and ran K. Reilly Law LLC. Kerry reminds people, “There is no ‘required minimum’ for creating an estate plan. Money is just ONE asset that can be managed within an estate plan … it need not be the reason for the plan.”
