LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

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Protecting Our Kids: When Is a Child Not a Child?

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Fans of the folk group Peter, Paul & Mary may remember this lyric: “Home is where the heart is, no matter how the heart lives.” Later in her career, Mary Travers’s voice may have aged, but she still sang this message of gay equality with undiminished gusto.

Home is where the heart is, especially for those of us in the LGBT community, who might not fit the traditional definition of family. The most important people in our lives may be bound to us more through emotional connections than legal ones.

Bonds of affection do make a family strong and cohesive, but they may not be enough to sustain it in a crisis. This is especially true for our children. The blending of families through adoption or remarriage can complicate the legal connection between parent and child. Being a loving parent means taking advantage of every benefit the law provides to protect this essential relationship.

No matter what the law says, a married couple raising a child will consider the child to be unequivocally theirs—loved and cared for by the two of them equally. But the legal reality could be different.

If the child is from one spouse’s prior marriage, or was adopted by one partner alone, the other spouse is a stepparent with very few legal rights. Decisions about the child’s education and medical care must be made by the biological or adoptive parent, and the stepparent simply has no say. In addition, if the stepparent were to die without a will, the child would receive nothing from the estate—even though the stepparent might have taken on the responsibilities of parenthood wholeheartedly.

Bonds of affection do make a family strong and cohesive, but they may not be enough to sustain it in a crisis.

One way to avoid this outcome is for the stepparent to adopt the child. Adoption effectively removes a child from one family and treats him or her as a natural-born member of the adoptive family. This includes the right to inherit from both parents if they die without a will.

If one parent has already adopted the child, a “second-parent adoption” is fairly straightforward. But in the context of a blended family, where the child is from a prior relationship, adoption is more complicated. Consent would first have to be obtained from the child’s other biological parent. This person may be close to the child and feel no inclination to give up his or her legal rights in favor of the child’s stepparent.

If that’s the case, the best solution is for the stepparent to have a current estate plan. By preparing a will, the stepparent can honor her commitment to love and care for the child as her own by providing an inheritance. There will be no inheritance tax to pay on this gift, and the bequest can ensure that the child is provided for even if the stepparent is out of the picture.

In addition to helping the child financially, the stepparent’s will can encourage the child to excel in life by placing the inheritance into a trust. A trustee would be named to manage the assets on the child’s behalf. In addition to meeting the child’s day-to-day needs for health care, education, and support, the trustee could be instructed to make a large lump-sum payment when the child graduates from college or professional school. This financial incentive will encourage the child to work diligently toward finishing his or her education.

A lifelong activist, Mary Travers once said that everybody has a responsibility to their community. We also have a responsibility to ourselves and our children. Calling an estates and trusts attorney is the first step to ensure that your legal commitment to your children is as solid as your emotional one.

Lee Carpenter is an Estates & Trusts attorney at Saul Ewing Arnstein & Lehr LLP and an Adjunct Professor at the University of Maryland Carey School of Law. This article is intended to provide general information about legal topics and should not be construed as legal advice. For qualified legal counsel contact Lee Carpenter at Lee.Carpenter@saul.com or 410.332.8626.