While it is important for almost all adults to engage in some type of estate planning, those in non-traditional relationships or with non-traditional families may face unique estate planning issues that require special expertise. Our attorney, Betty Raglin, is well-versed in planning for non-traditional families and the LGBTQ community. She has written a section in a Louisiana-specific legal publication on the topic and has presented continuing education to other attorneys on the topic.
In addition to the usual issues faced when doing estate planning, those in non-traditional relationships may have property ownership issues that other couples do not. Since same-sex marriage was not recognized in Louisiana until the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, many couples in non-traditional relationships have separate property that will be treated differently under Louisiana law than if the couple was married at the time the property was acquired. As a result, it may be necessary or desirable for married couples in non-traditional relationships to convert some or all of their separate property to community property subject to Louisiana’s community property regime that applies to determine the distribution of property at death.
There may also be issues regarding retirement plans and other employee benefits that are payable at death, such as IRAs and 401(k)s, that will need special attention since it is likely that some of the assets in these retirment plans were earned before marriage.
Since same-sex marriage is now allowed in Louisiana and by default all married couples in Louisiana are subject to the community property regime unless they opt out of it with a prenuptial agreement before marriage, those in same-sex relationships who are considering marriage may also want to consider the advisability of a prenuptial agreement.
For same-sex couples who already had estate planning documents in place prior to 2015, a review of those documents and beneficiary designations on retirement assets and insurance policies is essential. The rules that applied prior to 2015 may have changed with the change in the law. Additionally, partners who were not entitled to retirement benefits when they were not married may be entitled to those benefits at marriage.
Often non-traditional families are created through adoption by one or both partners. The inheritance laws that apply to distribution of property at the death of one of the parents may be drastically different depending upon whether the child has been adopted by both parents or is the biological child of one of the parents who has not been legally adopted by the other partner. Just as with traditional planning, any time there are young children involved in planning, it may be necessary for one or both of the parents to create trusts to hold that child’s inheritance in the event of the untimely death of the parent.
Likewise, all people in non-traditional relationships or with non-traditional families should have at least a basic will (naming guardians for minor children if there are any), a durable power of attorney for health care and financial decisions, a HIPAA authorization and a living will in place. This may be even more important in these situations as their may be family members of the couple who are not accepting of their relationship or are estranged from their family member and his or her family. As such, having everything carefully planned and documented can be especially important in the case of death or disability.
Regardless of sexual orientation or gender identity, there are many couples today who choose to live in relationships where they are not married. These couples may face challenges in accessing health information for their partner without the right legal documents in place. Also, if not married, different rules will apply to property distribution at death. Therefore, having a properly planned and executed estate plan is of great importance.
If you need further information about LGBTQ or non-traditional estate planning, our firm is uniquely positioned in Louisiana to provide you the guidance and assistance you need. Not only do our attorneys have the technical know how to assist LGBTQ and non-traditional estate planning clients, our firm makes it our mission to make sure that all people in Louisiana are empowered to leave a legacy of love and that mission extends to all people regardless of sexual orientation, gender identity or family situation.