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  • Writer's pictureCatherine Swan

Estate Planning Concerns for the LGBTQ+ Community

Even though we can’t celebrate Pride this year with parades and face paint and other people, Pride is an important time of year to recognize LGBTQ+ issues.

Let’s look at a few dilemmas faced by LGBTQ+ people and their partners, and what an experienced attorney would do to avoid these issues:

When it comes to common law marriages, only ten states still recognize common law. Still, many heterosexual couples are afforded the benefit of the doubt and considered spouses when they have lived together for many years.

Battle over property with family

LGBT families may face difficulties when it comes to common law marriages. One couple in New York City, Bill Cornwell and Tom Doyle, had lived together for fifty years in an expensive home, owned by Bill. When he died, Tom was left to defend his place in Bill’s life.

They also pointed out that though Bill had a will, it was only witnessed by one person instead of two, so it was not valid.

What you can do: Some partners have been together for decades and, like Bill and Tom, find it unnecessary or burdensome to think of planning a wedding after so long.

But if you want to provide for your partner after your death, you’ll need a professional will that is signed, notarized, and witnessed by two people.

Because we are concerned that LGBT families might be discriminated against, it’s better to have a will that you are certain will be valid and clear in a court of law.

Contests from family members

Another example of this situation happened when Jill Morris and Joan Anderson died only 14 days apart after more than 20 years together.

Jill passed away first, but her will had a strange 30-day survivorship stipulation for her “common law” spouse. If her estate had passed to her partner Joan, then Joan’s daughter Emlie would have inherited it. Instead, following Jill’s last will, the inheritance went to three charities.

It is unclear what was Jill’s intention, and whether or not she wanted Emlie to inherit her estate eventually.

Jill asked her friend and handyman to help her update her will.

What you can do: First of all, don’t trust updating your will to your handyman. While he has many talents, he doesn’t have 8 years of higher education to help you do this right.

To avoid contests, a professional estate planning attorney will help you to make it clear who is a beneficiary and who is not, and what your intentions are for your estate.

Blended families always pose estate planning complications, so you can’t be too careful when it comes to providing for a partner’s or spouse’s children.

You can also establish trusts in order to support the charities you care about. This is not a DIY situation; it’s complicated, and to be done right, it requires an attorney. Otherwise, your estate can get caught up in probate and it’s a lose-lose for everyone (except probate attorneys, who will make the big bucks).

Adoption issues & planning

Adoption is another area that can be tricky for any family. It can become especially complicated for same-sex partners, when one parent is biological or when the families are blended with children from previous relationships.

First of all, adoption is expensive. One couple in Texas estimated that it cost over $100,000 to adopt their two children. This would require careful financial planning. An estate plan is part of a financial plan and part of a couple’s long-term strategy.

Second, when a child is born to a surrogate or with the use of a sperm-donor, the non-biological parent must take measures to ensure that the child is legally adopted so they can have the legal rights they need to raise their child.

This is especially important in cases of emergency.

There are still unfortunate situations such as unsupportive families who refuse to recognize a spouse or partner as legitimate in a same-sex relationship. These families sometimes intervene and attempt to take custody of a child.

What you can do: Work with an experienced estate planning attorney who will help make sure you are properly organized and your wishes are legally enforceable. You will also make a plan, so the child is planned for in case of an emergency.

In lieu of a will, you might consider creating with your attorney a revocable living trust, which is private, so there is less room for dispute and contests.

Retirement home discrimination & preparation

Finally, some LGBT couples have faced difficulty or discrimination when it comes to finding a retirement home. As recently as 2018, a couple outside of St. Louis was denied cohabitation at a retirement home because they were not recognized as legally married.

Planning for your long-term care is an estate planning issue. A good attorney knows how important it is to have family nearby as you age. It’s imperative for your happiness and your well-being.

What you can do: Assemble a trusted team of advisors to create a strategy that works for you and your spouse. Your estate planning attorney, as a member of your team of advisors, can help you to craft a plan that works for you as a whole person, as a member of the LGBTQ+ community, and as a loving spouse to another person.

At Swan Law, we believe that love is love. This month and every month, we invite members of the LGBTQ+ community to make a solid estate plan with a trusted, local attorney who understands issues particular to northwest Colorado. We're also a friendly face with an office you can visit when you have questions and concerns.

If you need an estate plan, get in touch with our office at or 970-879-1572

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