This is the 5th in our segment on estate planning for the T & Q of the LGBTQ Community…
Photo: R. Parzychowski, Plock, Poland
Most people will agree that family battles are what make estate planning “sexy.” Forget about the smart tech wizards who create subtrusts and the stability that goes with it; Philip Seymour Hoffman’s story, may he rest in peace, is much more interesting. However, squabbles – or wars – in families of straight married couples may benefit on settled law and when the legal issue is murky, experienced judges are readily available. Neither settled law nor experienced judges are generally available when addressing family dynamics for transgender or queer couples. So, a transgender or queer person’s first line of defense against contentious family members is their trusted advisors.
Attorneys must be able to identify potential conflicts of interest and manage confidentiality with aplomb. Conflicts of interests involve understanding who our client is, e.g., are we representing Dana as an individual or Dana and Chris as a couple.
Equally, if not more important is the issue of confidentiality. What information have we been given permission to disclose, to whom, in what manner, and when. For example, can Bobbie’s mom know that Dana was born male? The employer? The children?
With respect to a will or trust, below are a few key concerns in light of family dynamics.
- Disinheritance. Family members who are contentious can always be written out.
- Fiduciaries. Would you want a family member who has always been a tad combative acting on your behalf?
- Digital assets. Only close loved ones should have access and control to the digital assets, especially personal email and social media accounts; otherwise, such assets should probably be deleted or destroyed. It’s nobody’s business when Dana or if Dana had sexual reconstruction.
As with all testamentary documents and trusts, the critical administrative provisions are also critical areas where instructions should be included with respect to communicating information, fiduciary selections, and more.
Another broad category under non-financial considerations is lifestyle intentions, i.e., travel and retirement in particular. Again, the overall issues are similar to straight married couples. However, the nuances are what distinguish planning for straight married couples from planning for transgender or queer couples. For example, today’s society is very mobile and clients are becoming more informed about a little of what we do, which is dangerous, especially if they don’t consult local lawyers about what they have learned. So, when considering lifestyle intentions and non-financial estate planning considerations, planning should include the following considerations.
- Vacations. Vacations should not be ruined because, while being treated for an allergic reaction, the client’s spouse can’t visit them.
- Relocation from Illinois or Cook County to an unfriendly jurisdiction. Though this may not be necessary, soon. Perhaps employment, grandchildren, or retirement has provided a desire to move. While many attorneys are only licensed to practice in one or two jurisdictions, any lawyer serving the LGBTQ community on issues related to family should have a thorough understanding of the national jurisdictional landscape with respect to marriage equality. For example, what does the jurisdiction say about children of married couples who are not adopted; what is the landscape for transgender rights? Does the retirement community or municipality to which the client plans to retire or visit as a snowbird provide healthcare treatment for transgender or queer persons? Is the community friendly to transgender or queer elders? The more unfriendly the jurisdiction, the more “right and tight” as Justice Ginsburg says the estate plan must be for those who travel or plan to relocate but retain property in Illinois, and especially for transgender and queer persons.
Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4 | Part 5
