Estate Planning for LGBTQ Individuals: Ensuring Security & Equity

Estate planning is the process of arranging for the management and distribution of property and responsibilities when a person becomes incapacitated or dies. For LGBTQ (lesbian, gay, bisexual, transgender, and queer) people — whether single or partnered — the stakes are often higher. Historic legal discrimination and persisting social stigma mean many LGBTQ individuals rely on self‑defined “chosen family” rather than biological relatives. Yet state intestacy laws (the default rules if someone dies without a will) typically prioritize legal spouses, biological children, and blood relatives. Without a clear plan, an LGBTQ person’s assets and even decisions about health care and burial may be controlled by estranged relatives rather than partners or friends.

The U.S. Supreme Court’s landmark 2015 decision in Obergefell v. Hodges guaranteed marriage equality nationwide, granting married same‑sex couples access to spousal estate‑tax benefits and automatic inheritance rights. However, marriage is not a cure‑all. Many LGBTQ couples remain unmarried; some live in states that formerly recognized domestic partnerships or civil unions; and transgender people must navigate documents that may not reflect their affirmed gender and name. This article explains why estate planning is essential for LGBTQ individuals, outlines key planning documents, addresses special considerations for unmarried partners and parents, and offers steps to create and maintain an effective plan.

Understanding the Legal Landscape

The Impact of Obergefell v. Hodges

The 2015 Supreme Court decision in Obergefell v. Hodges required states to license and recognize marriages between two people of the same sex. The ruling meant same‑sex spouses now have access to federal spousal benefits such as the unlimited marital deduction for estate and gift taxes and spousal inheritance rights. For married couples, this reduces the urgency of drafting legal documents to secure basic rights that heterosexual couples long enjoyed.

However, Obergefell did not automatically invalidate existing domestic partnerships or civil unions. Couples who entered into these arrangements before marriage equality may still be considered legally partnered. In some cases, an old domestic partnership can create an unexpected legal claim on a partner’s estate if proper dissolution documents were never executed. Individuals who married a new partner but never dissolved an earlier civil union risk leaving assets to a previous partner inadvertently. Similarly, old beneficiary designations on retirement plans or life insurance policies could direct assets to an ex‑partner. Regularly reviewing and updating these documents is critical.

Intestacy Laws Favor Biological Family

When someone dies without a will, state law determines who inherits the estate. Intestacy statutes generally prioritize spouses and biological relatives such as children, parents, siblings, and cousins. Partners who are not legally married or registered in a civil union are usually not considered heirs. Consequently, a long‑term same‑sex partner could be completely disinherited if there is no will or trust. A distant relative who has little relationship with the deceased might inherit everything, even if the deceased never intended that result.

For LGBTQ individuals whose relationships or family structures are not recognized by default law, a carefully drafted will or trust is the only way to ensure property passes to the intended beneficiaries. This is particularly important for people who have built “chosen families,” including close friends and community members, as these individuals have no inheritance rights under intestacy rules. Estate planning also allows owners to leave money to charities that support LGBTQ causes or to community members who may have provided care and support.

Parentage and Adoption Laws

Parenting rights in LGBTQ families can be complex. Although many states now have statutes allowing joint adoption by same‑sex couples and recognize both partners as legal parents, the patchwork nature of adoption laws still poses risks. In some jurisdictions, the non‑biological or non‑gestational parent may have to adopt the child to secure parental rights. Legal experts advise that even when both parents are listed on a child’s birth certificate, completing a confirmatory adoption provides extra protection if the family travels or moves to states that are less LGBTQ‑friendly.

Without a legal tie, the non‑biological parent may be considered a “legal stranger” to the child, potentially losing custody if the biological parent dies or becomes incapacitated. Estate planning instruments such as wills and trusts can name guardians and manage property for minor children, but they cannot confer parental rights. That makes legal adoption or other parentage orders essential to ensure continuity of care for children.

Why Estate Planning Is Crucial for Unmarried LGBTQ Partners

Lack of Default Protections

Unlike married couples, unmarried partners do not automatically inherit from each other. Because intestacy laws do not recognize unmarried partners, the surviving partner has no legal right to the deceased partner’s property without a will or trust. Even shared property such as a home titled in one partner’s name could pass to that person’s family, leaving the surviving partner without a place to live. To avoid such outcomes, unmarried couples should execute wills that specify their partner as beneficiary and consider owning real estate as joint tenants with rights of survivorship or tenants by the entirety where allowed. These arrangements allow ownership to pass directly to the survivor without probate.

Financial Security and Property Rights

Wills and trusts can provide financial security for a surviving partner by specifying the distribution of assets and establishing trusts to manage money over time. A revocable living trust can avoid probate entirely and ensure the trustee (the person managing the trust) transfers assets seamlessly upon death. For example, if one partner wants the other to live in their shared home but ultimately leave the property to children or relatives, a trust can grant a life estate to the surviving partner with instructions about how to distribute the property after their death.

Health Care and Decision‑Making Authority

Without legal documents, the default next of kin, such as a parent or sibling, may have authority to make medical decisions if someone becomes incapacitated. This can exclude a partner from hospital visitation and end‑of‑life decision‑making. A health care power of attorney or proxy enables a person to designate their partner as the legal decision‑maker for medical care. A living will or advance directive details preferences for life support, organ donation, and other healthcare decisions, ensuring the chosen person can implement these wishes.

Emergency and Incapacity Planning

An unexpected illness or accident can leave someone unable to manage their affairs. A durable power of attorney allows another person to handle financial and legal matters. Unmarried couples should sign reciprocal powers of attorney so each partner can access bank accounts, pay bills, file taxes, and sign documents. They can also create a HIPAA release permitting the partner to access medical information. Without such releases, privacy rules may bar partners from receiving updates about a loved one’s health.

Considerations for Married LGBTQ Couples

Dissolving Prior Civil Unions or Domestic Partnerships

Couples who previously entered into domestic partnerships or civil unions should confirm that these legal relationships were dissolved before marrying someone else. Some states automatically converted civil unions into marriages, while others require formal dissolution.

Failing to dissolve prior unions can lead to unintended inheritances. For instance, a domestic partner might still have inheritance rights if the partnership was never terminated. It is wise to consult an attorney in the state where the partnership was registered to understand the steps needed to terminate old arrangements.

Updating Beneficiary Designations and Estate Documents

Beneficiary designations on retirement accounts, life insurance policies, and payable‑on‑death bank accounts supersede the terms of a will. If an LGBTQ person named a former partner as beneficiary before marriage and never updated the forms, the ex‑partner could inherit the account even if the will says otherwise. Likewise, if the beneficiary is listed as “husband” or “wife,” some financial institutions may not recognize a same‑sex spouse without updated paperwork. Married couples should review all beneficiary designations, life insurance policies, pensions, and retirement plans to ensure the correct spouse or trust is named. They should also update wills, trusts, and powers of attorney to reflect changes in marital status and ensure new spouses have authority.

Confirmatory Adoption and Parental Rights

Even for married couples, confirmatory adoption may be necessary to secure parental rights for non‑biological parents, especially if the family travels or moves. While many states presume a child born into a marriage is the child of both spouses, not all states adhere to this presumption for same‑sex couples. Completing an adoption ensures that parental rights are recognized across state lines and by federal law. Married couples should also name guardians for minor children in their wills and consider establishing trusts to manage property for the children until they reach adulthood. Guardianship designations provide guidance to courts and avoid conflicts among potential caretakers.

The Community Property Question

Many states recognize community property for spouses, meaning that property acquired during the marriage is considered jointly owned. Obergefell extended community property rights to same‑sex spouses in states that follow that system. However, couples who moved between community property and common‑law property states may own property under different regimes. Estate planning can clarify which assets are community property, which are separate, and how they should be distributed. Prenuptial and postnuptial agreements can also define each spouse’s rights and help avoid disputes.

Transgender and Non‑Binary Individuals: Unique Challenges

Aligning Documents with Identity

Transgender and non‑binary people face additional considerations in estate planning. Legal documents should reflect their correct name and gender marker to prevent misgendering and ensure recognition by courts, banks, and healthcare providers. Outdated documents can cause confusion and may inadvertently “out” someone. Estate planning is an opportunity to update wills, trusts, and beneficiary designations to reflect current identity, particularly if there has been a legal name change or gender marker update.

Health Care and Body Autonomy

Advance directives and health care proxies can specify gender‑affirming care preferences and designate medical decision‑makers who understand the individual’s identity. For example, a transgender person might include instructions to continue hormone replacement therapy and to use gender‑affirming clothing or prosthetics even during hospitalization or after death. This ensures their wishes are respected and avoids disputes among family members who may not support or understand their gender identity. A well‑drafted directive reduces the likelihood of court intervention over controversial or contested medical treatments.

Funeral and Burial Instructions

Estate planning instruments can incorporate funeral or memorial instructions, including the desire to be dressed in gender‑affirming clothing, to use a chosen name on the headstone, or to avoid certain religious practices. Without clear instructions, the default decision‑maker (often a biological relative) may choose burial arrangements inconsistent with the person’s identity. A separate burial or final arrangements directive, often recognized in many states, can specify who has authority over these decisions.

Essential Estate Planning Documents for LGBTQ Individuals

Wills

A will is the cornerstone of any estate plan. It names an executor to manage the estate, lists beneficiaries, and directs how property should be distributed. For LGBTQ people, wills are vital because they override intestacy laws that might exclude partners or chosen family. Parents can also use wills to name guardians for minor children, ensuring the court honors the deceased parents’ wishes. Without a will, children could be placed with relatives who do not support LGBTQ relationships or gender identities.

Trusts

Trusts are versatile tools that hold property for beneficiaries under the management of a trustee. A revocable living trust enables the creator to manage their assets during life and directs the trustee to distribute or manage property upon incapacity or death. Trusts avoid probate, which can be time‑consuming and public. For LGBTQ families, trusts can protect privacy, allow flexible distributions, and provide oversight of how funds are used. They are useful when leaving property to a partner while ultimately benefiting children or other family members. Trusts can also hold assets for long‑lived beneficiaries such as pets, an arrangement recognized under pet trust statutes.

Durable Powers of Attorney

A durable power of attorney authorizes an agent to handle financial and legal affairs if the principal (the person granting the power) becomes incapacitated. Without it, a court may need to appoint a conservator or guardian, which can be costly and may empower a relative who does not respect the individual’s wishes. LGBTQ partners should grant each other durable powers of attorney to ensure they can access funds, pay bills, and manage property. These documents remain valid if the principal becomes mentally incapacitated, making them an essential part of incapacity planning.

Health Care Proxies and Advance Directives

Health care proxies or powers of attorney designate someone to make medical decisions when the patient cannot. Advance directives (also called living wills) provide instructions on life‑sustaining treatment, pain management, organ donation, and other end‑of‑life matters. For LGBTQ individuals, these documents are critical to ensure that partners have authority to make decisions and that gender‑affirming care and other preferences are respected. Without these documents, medical providers may consult biological relatives who might exclude partners or disregard gender identity.

HIPAA Releases and Hospital Visitation Authorizations

The Health Insurance Portability and Accountability Act (HIPAA) restricts access to medical information. A HIPAA release allows designated people to speak with healthcare providers and obtain medical records. Hospital policies sometimes restrict visitation to “family” members, which may exclude unmarried partners unless they have authorization. Signing a hospital visitation authorization or including instructions in a health care proxy ensures the partner’s ability to visit and receive updates during hospitalization.

Guardianship Designations for Minor Children

Parents should name guardians for their children in wills or separate designations. Guardianship provisions guide courts and help prevent custody battles between surviving partners and biological relatives. For LGBTQ families, naming both a primary and alternate guardian is prudent, especially if there is a chance that a judge or relatives may challenge the chosen guardian due to bias. Estate plans can also establish testamentary trusts to manage children’s inheritance until they reach maturity, providing for education, living expenses, and healthcare.

Beneficiary Designations and Payable‑on‑Death Accounts

Beneficiary designations on retirement plans, life insurance policies, annuities, and payable‑on‑death bank accounts supersede wills and trusts. LGBTQ individuals should ensure that these designations are up to date and reflect current relationships. A common mistake is leaving an ex‑partner or a deceased relative as beneficiary because the forms were never updated. Regularly review these designations, particularly after major life events such as marriage, divorce, or the birth of a child.

Practical Steps to Create an LGBTQ‑Inclusive Estate Plan

1. Inventory Assets and Liabilities

Start by listing all assets (bank accounts, investments, real estate, retirement accounts, life insurance, valuable personal property) and debts. Determine how each asset is titled and whether there are joint owners or named beneficiaries. This inventory helps identify which assets will pass through the will, which are subject to beneficiary designations, and which are jointly owned. Documenting digital assets — email accounts, social media profiles, cryptocurrency — is also important. Specify how these should be managed and who can access them.

2. Define Goals and Discuss Them

Before drafting documents, consider personal goals: providing for a partner’s housing, preserving a family business, caring for children or pets, donating to charities, and ensuring healthcare wishes are honored. Discuss these goals with a partner or other trusted people. Honest conversation helps avoid conflicts. For example, if one partner expects to support aging parents financially, the estate plan should reflect this responsibility.

3. Work with Experienced Professionals

While many states permit individuals to write their own wills, working with an attorney experienced in LGBTQ estate planning helps address unique considerations. Lawyers understand state‑specific laws, such as how community property is treated, whether domestic partnerships still carry legal weight, and how to structure trusts. They can also help coordinate estate planning with tax planning, especially for high net‑worth couples who may benefit from strategic charitable giving or lifetime gifting.

4. Prepare and Sign Core Documents

Draft wills, trusts, powers of attorney, health care proxies, living wills, HIPAA releases, and guardianship designations. Ensure each document is properly executed under state law, often requiring witnesses and notarization. For transgender individuals, confirm names and gender markers are updated in all documents. Include instructions for funeral arrangements and naming rights to avoid misgendering.

5. Fund Trusts and Update Beneficiary Designations

Once a trust is created, transfer ownership of property into the trust — deeds, bank accounts, investment accounts, and business interests. Failure to fund a trust defeats its purpose, sending assets through probate instead. Simultaneously, update beneficiary designations on retirement plans, life insurance, and payable‑on‑death accounts to align with the plan. Consider naming the trust as beneficiary for some assets to allow the trustee to manage funds according to the instructions.

6. Communicate with Family and Chosen Guardians

Tell the appointed executors, trustees, guardians, and healthcare proxies about their roles and provide them with copies or access to the documents. Communication reduces surprises and helps ensure the plan is followed. For guardians, provide information about the children’s needs, medical conditions, and routines. For healthcare proxies, discuss preferences about medical treatments and life support. Let family members know that an estate plan exists, even if they disagree with the decisions, to reduce confusion and potential disputes.

7. Review and Update Regularly

Life circumstances change: relationships begin and end, laws evolve, and financial situations fluctuate. Review estate plans every three to five years or after major events, such as marriage, divorce, birth of a child, adoption, moving to another state, or a significant increase in wealth. Updating documents ensures they reflect current wishes and comply with new laws. For example, if a court ruling changes adoption or community property rules, adjusting the plan can protect family members.

8. Consider Insurance and Long‑Term Care

Health events can drain savings quickly. Life insurance can provide financial support to surviving partners or children. Long‑term care insurance can cover nursing home or home health expenses. Annuities may offer a steady income for a partner. Work with a financial advisor to determine which products are appropriate and ensure beneficiary designations align with the estate plan.

9. Plan for Pets and Other Dependents

Pets are cherished family members and should be included in estate planning. Pet trusts are allowed in all U.S. states and provide funds for a pet’s care and name a caregiver. Without a pet trust or provision in a will, pets are treated as property and could be rehomed or euthanized. Similarly, individuals who support dependents with disabilities can create special needs trusts to avoid jeopardizing government benefits. Planning ahead protects vulnerable loved ones.

Conclusion: Estate Planning as an Act of Love and Resilience

Estate planning empowers LGBTQ individuals to define their legacy, protect chosen family, and ensure their values are honored. It offers legal protection against discrimination, estranged relatives, and outdated laws. By drafting wills, trusts, powers of attorney, health care proxies, and guardianship designations, individuals control who inherits property, who makes medical decisions, and who will care for children and pets. Planning also reduces conflict, delays, and costs for loved ones at a time of grief.

Marriage equality has removed many barriers, but it does not eliminate the need for careful planning. Unmarried partners must create documents to secure rights; married couples must update beneficiary designations and dissolve prior unions; transgender individuals must align legal documents with their affirmed identities; parents must secure parental rights through adoption; and everyone should prepare for incapacity. Regularly reviewing and updating estate plans ensures they keep pace with life’s changes and evolving law.

Ultimately, estate planning is an act of love and resilience. It acknowledges the unique histories and needs of LGBTQ people and offers a framework for caring for one another. By taking these steps, individuals not only protect themselves but also affirm the dignity and autonomy of their partners, children, and chosen family. The peace of mind that comes from having a solid plan allows people to live fully in the present, knowing they have honored their relationships and values for the future.