The legal landscape for LGBT couples changed greatly in June 2015 when the U.S. Supreme Court upheld the right for same-sex couples to marry in all 50 states. After the Obergefell v. Hodges decision, many married same-sex couples in Phoenix assume that creating an estate plan is no longer a priority. This assumption is far from the truth. Both married and unmarried LGBT couples still face unique challenges and should engage in estate planning with a professional estate planning attorney.
Married LGBT Couples
If you die without a will (intestate) in Phoenix, state law determines how your estate will be distributed. If you are married, whether heterosexual or not, your entire estate will go to your spouse if you have no children or if you and your spouse have children together. If you have children that are not also the children of your spouse, your spouse will get half of your estate and your children will inherit the other half of your property. For many people, Arizona’s intestate laws do not reflect their wishes and a will must be created to fit their goals.
Even if Arizona’s intestate laws mirror your wishes, there are additional reasons to create a will. First, without a will, the court, not you or spouse, will decide who the guardians of your minor children will be. Additionally, a will provides the opportunity to clearly communicate all your wishes relating to funeral and burial arrangements.
Additionally, estate planning can involve much more than just creating a will and LGBT couples should consider all the estate planning tools that are available to them, including those listed below:
- Durable Power of Attorney. A durable power of attorney gives another person full or limited authority to sign your name on your behalf in your absence and is valid through incapacity. All spouses should create a durable power of attorney to plan for the handling of financial accounts and assets on behalf of their spouse.
- Revocable Living Trust. A revocable living trust holds assets for the benefit of other persons or entities. One purpose of creating a trust is to avoid probate. Some LGBT couples may be more vulnerable to attack from unsupportive family members and avoiding probate can help keep the process more private.
- Health Care Power of Attorney. All married couples need a living will to plan for end-of-life care and prevent healthcare arguments that could happen between spouses and other relatives. Under Arizona law, if you fail to draft a living will, your spouse will not automatically be designated as the person who can make health care decisions on your behalf. Rather, the court could grant another family member or good friend the authority to make healthcare decisions for your spouse.
Unmarried LGBT Couples
If you are an LGBT couple in Phoenix and die without a will, your unmarried partner would not be entitled to any part of your estate. Arizona does not recognize unmarried partners as legal heirs. Not only do you need to create a will for the reasons stated above but also to ensure that your partner is not left empty-handed. As with married couples, you should also take advantage of other estate planning tools to make certain that your wishes and goals are planned for.
Phoenix Attorney Serving the LGBT Community
Whether you are a married or unmarried LGBT couple, you should consult with an experienced Phoenix estate planning attorney who will create a plan that will best fit your goals. Nicole Pavlik Law Firm helps the residents of Phoenix, Arizona with their estate planning needs. Call her Nicole Pavlik Law Firm at (602) 635-6176.