LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

500 E Pratt St, Suite 900, Baltimore, MD 21202-3133 • 410.332.8626 • info@mdlgbtestateplanning.com

The English author John Lyly once said, “Marriages are made in heaven and consummated on Earth.” Indeed, marriage has long been a two-sided coin. On the one side are the social and emotional aspects of the institution, the heavenly “joy and wonder” of marriage. On the other are the legal implications, the earthly rights and privileges the law grants to married couples.

After exchanging wedding bands, many couples assume that they have cemented their relationship with every benefit and privilege the law has to offer. Marriage does confer many essential rights—more than a thousand, by one count. But there are several legal protections a marriage license simply does not provide. As a consequence, couples who have tied the knot should take additional steps to ensure that they are prepared for the uncertainties of life, including the death or disability of a spouse.

Whether they are gay or straight, most couples assume that if one of them died, the surviving spouse would inherit everything left behind—the car, the house, the bank accounts, and any jewelry, furniture, or other personal property. That assumption would be wrong.

Of the things we’d rather not think about, death certainly tops the list. But whether you see the end of life in spiritual, practical, or philosophical terms, it’s something we all must confront eventually. In the words of one person’s living will, “Death is as much a reality as birth, growth, maturity, and old age—it is the one certainty.”

The unpleasantness of the topic can make planning for death easy to put off. In fact, the vast majority of Americans will leave this earth without ever having prepared a will. But when the reality of death is fast approaching, perhaps through a serious illness, we should seize the opportunity to prepare for what lies ahead.

Here are five things to consider doing:

Robert Burns famously said, “The best-laid plans of mice and men often go awry.” Burns was an 18th century Scottish poet, but he could just as easily have been a modern Estates & Trusts attorney. Too often, this familiar saying applies to the estate of someone who has died.

Even if the person had a will, the final determination of who gets what might be dramatically different from what was expected. Why would this be? The simple fact is that a will can do only so much. It controls the assets that you own in your name alone and that do not name a beneficiary. These “probate assets,” as they are called, include things like a house, car, or bank account without a co-owner.

The problem is that for most of us, the bulk of our wealth resides in assets that do have a co-owner or beneficiary. Think joint bank accounts, life insurance policies, and retirement accounts. Upon your death, these “non-probate assets” will transfer to the co-owner or named beneficiary—regardless of what your will might say.

Providing for someone you care about can be one of life’s great challenges. You may have a spouse or partner who depends on you financially. Or a relative with money problems who sometimes turns to you for help. Or perhaps you are fortunate enough to have children and want to give them every possible advantage in life. Whoever you care for, your life’s work may well focus on supporting them.

If someone does rely on you, one of the hardest questions to consider is what they would do without you. You might be able to provide for the person financially by leaving them an inheritance under your will or making them the beneficiary of your life insurance. But money can be squandered, and it may need to be protected from bill collectors, unscrupulous “friends,” and possibly even the loved one himself.

One of the most effective ways to avoid these hazards is to create a “spendthrift trust.” Whether you are leaving cash, securities, real estate, or the proceeds of an insurance policy, the assets will be managed by one person, called the “trustee,” for the benefit of your loved one, the “beneficiary.” The trust can be set up to disburse money in a controlled manner, ensuring that your loved one is well provided for.