Staying Prepared: LGBTQ+ Estate Planning Tips for Changing Times

With the new administration taking office in January, LGBTQ+ couples across the country are worried their legal marriages might lose their protections that were given in the Obergefell v. Hodges decision and the 2022 Respect for Marriage Act.

Before those decisions, LGBTQ+ marriage protections were a patchwork of state laws and had no federal protections. While some states allowed LGBTQ+ marriages with full rights, others only allowed civil unions or no protections at all.

In addition, the Defense of Marriage Act passed in the 1990s gave federal benefits to only marriages between a man and a woman.

While it is unlikely all of the recent protections will be overturned, it is essential to ensure your estate plans are up to date and clearly state what happens when you die just in case the worst-case scenario happens.

The attorneys at The Orlando Law Group have a long history of working with LGBTQ+ couples before the Obergefell decision and afterward to ensure their assets and wishes are protected regardless of the laws about same-sex marriage laws.

Before Obergefell

For decades, the United States has been working on how it treats LGBTQ+ couples who want to get married.

In the 1970s, after the Stonewall Riots in New York City, there were several key steps forward and backward toward building equality in marriage on a state and federal level.

But it was bleak for couples who didn’t establish estate plans that legally directed the division of assets after death. If there wasn’t a will or trust or any other type of tool for estate planning used, the courts would decide how the assets of the deceased were split.

In many states, including Florida, that meant the surviving member of the couple had virtually no rights to any of the assets if contested by the family of the deceased. It was truly heartbreaking to see story after story of LGBTQ+ individuals watching a lifetime of shared assets being taken away because of the hate of other family members toward the deceased’s lifestyle.

Perhaps even worse was if one person of the LGBTQ+ couple was incapacitated in the hospital. The other half of the couple had no rights unless granted by blood relatives.

However, a legally binding estate plan for LGBTQ+ couples was a way to clearly state to the court the intentions of the deceased and for medical care.

What did Obergefell do?

 Adding to the confusion was that some states – like Massachusetts and Washington – legally recognized an LGBTQ+ marriage whereas some states – like Florida and Wyoming – had statutes preventing LGBTQ+ marriage.

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