What Every LGBT Older Adult Needs to Know About Wills

June 2011 | Nancy J. Knauer

A will is an essential part of any estate plan, but this is especially true for LGBT people. Your will designates who gets your property when you die. It also appoints an individual to make important decisions about your estate, known as your "personal representative" or "executor."

Not surprisingly, many people find it difficult to talk about end-of-life planning, and they put off preparing a will until it is too late. An estimated two-thirds of all people die without a will (i.e. "intestate"), but dying intestate can have devastating consequences for LGBT people because, in the majority of instances, the law does not recognize our chosen families – our partners, friends and caregivers.

If you die intestate, the law steps in and makes certain assumptions about how you would have wanted your property distributed and whom you would have chosen as your personal representative. With the exception of the few states that recognize same-sex marriage or have a status similar to marriage, the law does not recognize your partner as your next of kin, and no state will consider your close friends to be family, regardless of how important a role they play in your life. Instead, the law looks to traditional relationships defined by either biology or adoption. This means that a second cousin whom you have not seen for 30 years would have priority over your partner or best friend, both of whom are considered to be mere "legal strangers."

The only way to avoid this result is to sign a will that clearly expresses your wishes. Some people make the mistake of thinking that they can simply jot down what they want on a piece of paper and that will be sufficient. Although this approach might be better than nothing, a will is a formal legal document that must comply with certain complicated formalities, such as the rules governing witnesses. These formalities vary from state to state, and only a few states will respect a handwritten or "holographic" will. Even where they are recognized, handwritten wills often raise more questions than they answer, and they are more susceptible to a challenge from next of kin.

Unfortunately, the preference in the law for traditional family remains so strong that the members of your "legal family" can contest a will that favors your "chosen family" and attempt to have the will set aside on a number of grounds, including lack of capacity and what is referred to as "undue influence." Under the law, this is possible because the members of your "chosen family" are not considered the "natural objects of your bounty." For this reason, it is important to consult an attorney who is knowledgeable about LGBT estate planning and the particular needs of the LGBT community. Where estate planning is concerned, one size definitely does not fit all.

Estate planning can also raise certain tax issues, depending on the size of your estate. The federal estate tax only applies to relatively large estates, but same-sex partners do not qualify for the generous unlimited marital deduction. State inheritance taxes vary widely and whether a same-sex partner will qualify for any relief granted under marital provision will depend on state law. Regardless of the size of your estate, however, it is important to remember that the only way to make sure that your wishes are respected is to write a will, and the best way to do this is to consult an attorney.

Nancy J. Knauer is the I. Herman Stern Professor of Law at Temple University, Beasley School of Law. She teaches in the areas of Political & Civil Rights, Property, Sexuality & the Law, and Taxation. Her recent book, Gay and Lesbian Elders: History, Law, and Identity Politics in the U.S., examines the unique challenges facing gay and lesbian elders.