LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

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Why the Legal Benefits of Marriage Aren’t Enough

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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.

There are several legal protections a marriage license simply does not provide.

The simple fact is that the surviving spouse is entitled to only part of a deceased spouse’s estate. Depending on certain factors, such as whether the couple has children, this share could be roughly one-half to one-third of the estate. The rest would go to the couple’s children or possibly the deceased spouse’s parents. Either way, the outcome will probably differ dramatically from what the couple would have expected.

Being married does go a long way toward protecting the survivor if one spouse dies. The surviving partner of an unmarried couple would effectively be disinherited. But the benefits of marriage extend only so far. The responsible approach is to visit a lawyer from the LGBTQ community to have wills drawn up that leave everything to the survivor in case something should happen to either spouse.

Wills can also provide for any children when both spouses are deceased. Placing a child’s inheritance into a trust will help to ensure that it goes toward worthwhile purposes, like college, medical care, or maybe the down payment on a house. A will can also name guardians to look after any children who may be under the age of 18 when both spouses are gone.

Whether you have children or not, having a will prepared ensures that someone you trust will settle your estate. Most couples name each other as their “personal representative.” If, however, the other spouse is also deceased, it can be essential that the will name a responsible person to take on this role. Otherwise, this important job may fall to a family member who might not have your best interests at heart.

One right that marriage does confer is the right to make medical decisions on behalf of your spouse. Just as important, however, is the right to make financial decisions, which can be granted only under a power of attorney. The attorney who prepares your will can also draw up these important documents.

For those of us in the LGBTQ community, the right to marriage was hard-won. We lobbied our representatives, donated to advocacy groups, and marched in parades. If you and your partner are ready to tie the knot, make sure you finish the job by having an estate plan prepared to help you navigate the uncertainties of life.

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.