Why Those In The GLBT Community Need An Estate Plan

Gay and lesbian couples have 1138 fewer rights under the law than their heterosexual counterparts — even if those gay people are married or in unions that are recognized by some states.

As a practitioner with clients in the GLBT community, I am committed that all people experience equal rights under the law.  Until that time arrives, we will ensure that each and every one of our clients have an estate plan protected under the law. Why?  Because according to the National Center for Lesbian Rights, “if you are GLBT, you must be proactive to protect yourself and your loved ones as you age, because the law does not provide you the same safety net that it does for non-GLBT people. There are concrete steps that you can take to build your own safety net.

What are those “concrete steps that you can take?”  Creating your written estate plan to both mimic the laws afforded to heterosexual couples, and to take advantage of the planning that married couples cannot take advantage of.

There are various legal rights that heterosexual couples take for granted – they see them as simply their just due under the law – but those same rights are denied members of the GLBT community who are in committed partnerships.  Those rights include, but are not limited to, the right to make medical decisions when loved ones can’t, the right to inherit property of a spouse, the ability to handle financial matters when a partner is incapacitated, and the right to raise the couple’s children.  To illustrate, it was not until April of 2010 that President Obama signed into law the provisions that allow an GLBT person to visit their partner in the hospital. 

In a detailed report dated January 23, 2004, the Government Accountability Office (GAO) outlines individually the wide variety of federal laws in which marital status is a factor.

The GAO – which is the audit, evaluation, and investigative arm of the United States Congress – has written two detailed reports on the impact of 1996’s Defense of Marriage Act (DOMA); both reports identify federal statutory provisions in which rights, benefits and privileges are contingent upon marital status. The GAO’s 1997 report identified 1,049 of these rights, benefits and privileges, whereas their 2004 report identified 1,138 of them.

Due to DOMA – which states that the federal government’s definition of marriage is a legal union exclusively between one man and one woman – gays and lesbians are not afforded those same legal rights, benefits and privileges as their straight, married counterparts.

The GAO’s report lists, item-by-item, the legal rights which are specifically denied to members of the GLBT community; the rights, benefits and privileges are varied and range from items such areas of concern as Child and Family Services, Medicare and Community Programs on Aging, to Family Violence Prevention and Service, Income Taxes and Veterans Benefits.

To read the complete 18-page report, which outlines each of the denied rights specifically, either visit the Government Accountability Office’s website: http://www.gao.gov.