GLBT Law 101: Estate Planning

Sean Lemieux
Attorney at Law

I heard a horror story recently from an acquaintance. It seems the partner of a friend of my acquaintance died unexpectedly in a traffic accident. The couple, in their early 30s, had been together about five years, had combined their households and lived like any other married couple, just without the marriage part and the protections it provides. They had planned for their future together, but hadn’t done any estate planning. They thought they were too young and didn’t have enough assets to worry about. The result: the deceased partner’s parents drove a rented truck to the home the couple shared and took almost everything. So, on top of dealing with the loss of his spouse, the survivor had to fight to get back what was his, including his clothes. Such fights are long and expensive. And they are almost entirely preventable with proper estate planning. Estate planning is for everyone, but is especially important for GLBT adults of all ages. The law doesn’t protect you, so you must protect yourself. If you don’t make the important decisions about your life and property, the state will make those decisions for you.

Estate planning is about being in control. It’s about making decisions today concerning your healthcare, your financial affairs and your property that other people will have to follow in the future. Estate planning is for everyone – young and old; wealthy and not wealthy. And for most people the process can be very uncomplicated. Generally, having a will, a healthcare power of attorney and a general power of attorney will provide all the protection necessary. If you don’t take the time to do estate planning, the state will do it for you with its default rules. And the state’s default rules provide no recognition for GLBT families.

Here are some basics everyone should know:

A Will is the document you use to direct who gets everything you own after your death. If you do not have a will, the state has laws that say how your property is distributed after your death. It goes to a lawfully recognized spouse, children, parents and other blood relatives. The law provides no protection for your same-sex partner (or your friends or favorite charity). Without a will, your partner will inherit none of your property. Even if you’ve had a commitment ceremony at your church, been married in Canada or Massachusetts, or registered as domestic partners with your employer, the result is the same. Without a will, your blood relatives, or the state if you have no blood relatives, will receive your property upon your death. It doesn’t matter how much property you own. Whatever it is, you’ve worked for it and it should be up to you to decide what happens to it.

The state has similar default rules with regard to healthcare decisions. If you become ill or injured and are unable to make health care decisions for yourself, the state has a law saying who gets to make those decisions for you. Not surprisingly, the authority is given to a lawfully recognized spouse, adult children, parents and other blood relatives. Unless you have a health care power of attorney appointing your partner to make these decisions, he or she has no decision making authority. Often in these circumstances, blood relatives can, and do, exclude same-sex partners from decisions and even from visiting you in the hospital. Having a health care power of attorney allows you to control who will make these important decisions for you.

A general power of attorney is yet another way for you to control today what happens in the future. This document allows you to appoint someone to manage your financial affairs if you become unable to manage them yourself. If you are ill or injured, who do you want to have access to your bank account to make sure your car payment is made, or the mortgage and light bill get paid? If you don’t have a power of attorney, it’s likely that a guardianship would be necessary to give someone the authority to take care of your financial affairs. The guardianship process is much more complicated and expensive. More importantly for some, the guardianship laws provide no preference for a same-sex partner to be appointed as the guardian. This could result in having your partner or a close friend -- whom you really want to take care of things for you – being completely cut out of decision making.

Estate planning probably isn’t on anyone’s top ten list of fun things to do with a couple of hours. But if you don’t do it, your future, and that of your loved ones, can be affected in profound ways. So take some time to talk to a knowledgeable lawyer and do some planning. It’s up to you to protect your future.


Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.

This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.