Life & Estate Planning for LGBT Couples and Families

In addition to the reasons provided above (avoiding probate, reducing estate taxes, expressing your wishes, and establishing a care plan for minor children), and despite recent advances in marriage recognition, both in Wisconsin and nationally, life and estate planning remains crucial for same-sex couples for a number of reasons.

LGBTQ rainblow flag waving in the wind

Helping To Protect Your Relationship

First, properly drafted documents will help protect your relationship and your family, no matter if the law changes or if you find yourself in a jurisdiction with discriminatory laws. While there have been sweeping changes in recent years regarding same-sex marriage recognition and other legal reforms that affect LGBT families, these reforms are far from set in stone. That is, all of these changes are relatively new and many are still being challenged in the courts and through the legislative process. Furthermore, it will take some time before Wisconsin’s laws, and the laws of other jurisdictions, catch up to these changes. For example, many Wisconsin statutes use the terms “husband” and “wife.” Until such statutes are revised (to use the term “spouse” instead, for instance) there is a risk that such statutes could be used to discriminate against LGBT couples and families.

Second, the distribution of a decedent’s assets under Wisconsin’s intestacy laws is based on a “traditional” family model. If your family does not fit this traditional model, for example if you are raising a child who you consider your child but whom is not your legal child, your assets may be distributed in a way that does not conform to your wishes and does not respect your family structure. In addition, while society is becoming more accepting of LGBT people, many LGBT people still face discrimination within their own families because of their sexuality or gender expression. Under intestacy laws, a decedent’s estate may be distributed to the very people who were not accepting of their LGBT family member during his or her life. With estate planning documents in place, not only can you establish who will receive your assets upon your death, but estranged or hostile family members can be clearly disinherited so there is no ambiguity regarding their right to claim a share of your estate upon your death.

Aside from ensuring that your assets are not distributed to estranged or hostile family members, life and estate planning documents also protect your family from other threats or challenges. For example, The Law Center’s documents are drafted so that the parental rights of a non-biological parent are recognized and reinforced by such documents, in the event that family members or other third parties (e.g., hospital staff, government agency workers) are not respecting that relationship. Our documents also allow you to determine who may visit you in a health care setting if for example, hospital staff or family members are not respecting your marriage or other “non-traditional” family relationships.

Finally, life and estate planning documents are particularly important for LGBT families because they protect the parent-child relationship between the non-biological parent and her child. Despite same-sex marriage recognition in Wisconsin, for now and the foreseeable future, a court order (for parentage or a step-parent adoption) is still required to establish a legal relationship between a non-biological parent and her child, even if the non-biological parent is married to the child’s biological parent. This is unlike a heterosexual marriage, where the husband is presumed to be the legal father of any child born during marriage, with no further legal action required to establish his paternity. Life and estate planning documents can help protect the relationship between the non-biological parent and her child until such a court order is obtained, and, after legal parentage is achieved, reinforce the legal relationship between the non-biological parent and her child.

Putting life and estate documents in place helps counteract the effect that changes in the law, or the discriminatory application of current laws, may have on your family, and helps foreclosure on other potential challenges and threats from family members or third parties. For these reasons, a comprehensive estate plan should be considered along with other legal steps, such as marriage and/or obtaining legal parentage by court order.