THE COMPREHENSIVE ESTATE PLANNING GUIDE

with a LGBTQ+ Twist.

ou can take it from an estate planning attorney that estate planning may not be the most exciting topic, but it is a critical step for everyone to protect themselves and their loved ones. Here, we will explore estate planning through an LGBTQ+ lens while ensuring that the information provided applies to all individuals, regardless of their sexual orientation or gender identity. By showing how estate planning can address the unique needs and concerns of the LGBTQ+ community, I hope to make this oftenoverlooked and sometimes mundane topic more engaging and inclusive for everyone.

Ethan is an associate attorney at SW&L and joined the firm in 2022. He practices in North Dakota and Minnesota, focusing on estate planning, probate, and guardianship and conservatorships. Ethan helps his clients by taking into account their individual circumstances and utilizing the legal tools available to draft a comprehensive estate plan that best serves the client’s interests.

UNDERSTANDING HISTORICAL CONTEXT AND THE NEED FOR LGBTQ+ ESTATE PLANNING

The LGBTQ+ community has faced a long and challenging journey toward achieving equality and recognition. Historical struggles for civil rights, such as marriage equality and non-discrimination protections, have brought about significant legal changes. In 2015, the United States Supreme Court legalized same-sex marriage in all 50 states, with its opinion in Obergefell v. Hodges. In 2020, the Supreme Court held that gay and transgender people are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964. Bostock v. Clayton County. The historic Supreme Court rulings of Obergefell and Bostock undoubtedly marked significant milestones in the fight for LGBTQ+ rights, ensuring marriage equality and workplace protections. However, the fragility of these victories should not be overlooked. The interpretation of constitutional rights can change, evolve, and thus, subsequent court decisions may impact the stability of these fundamental rights and protections.

There has also been progress on the legislative front for the LGBTQ+ community. In 1996, Congress passed the Defense of Marriage Act (DOMA). It defined marriage as a legal union exclusively between one man and one woman for federal purposes. The main purpose of DOMA was to deny federal recognition and benefits to same-sex couples who were legally married in their respective states. In December of 2022, congress passed the Respect for Marriage Act (RFMA), which repealed the Defense of Marriage Act, and required federal recognition of same-sex marriages. However, it does not guarantee complete protection. The RFMA's impact is contingent upon Obergefell remaining in effect. Should the Supreme Court overturn Obergefell, as Justice Clarence Thomas suggested in his concurrence in Dobbs v. Jackson Women’s Health Org., the RFMA would not prevent individual states, like North Dakota, which defines marriage as a civil contract between a man and woman, from denying marriage licenses to same-sex couples, potentially leaving their legal recognition in limbo.

In light of these potential challenges, it is crucial for LGBTQ+ individuals, including young people, to execute and get counsel on legal documents such as a Power of Attorney, Healthcare Directive, Wills, and Trusts to protect themselves and the ones they love no matter what happens in politics, the courts, or the legislature.

Power Of Attorney

As a young attorney, I often encounter questions from young individuals who wonder if they need an estate plan at their age. While it is true that estate planning typically becomes more comprehensive as life progresses, there is one crucial document that everyone should have once they turn 18: a power of attorney.

A power of attorney is a vital legal document that empowers someone else to act on your behalf in financial, legal, or personal matters. This appointed individual possesses the authority to make decisions and represent your interests when you are unable or unwilling to do so yourself. In situations where incapacitation occurs, the power of attorney document can be a crucial tool to bypass the need for guardianship and conservatorships. It also allows you to express your preferences for who should act as your guardian and conservator if the need arises. The significance of this document becomes even more evident when considering the experiences of LGBTQ+ individuals.

Consider the case of In re Guardianship of Kowalski, which unfolded in Minnesota in 1991. The focus was on a lesbian couple, Sharon Kowalski and her partner, who had been living together for four years, exchanged rings, and named each other as beneficiaries on their life insurance policies. Tragically, Sharon was involved in an accident that left her incapacitated. Sharon's father and partner both petitioned to be appointed as her Guardian and Conservator. Ultimately, Sharon's father prevailed. Being at odds with Sharon's identity and lifestyle, he terminated her partner's visitation rights, resulting in years of separation between them. Fortunately, through the appeals process, Sharon's partner eventually became her Guardian and Conservator, marking a significant victory for LGBTQ+ rights.

Sharon’s case exemplifies the critical importance of a power of attorney document for LGBTQ+ individuals. When someone comes out and faces non-acceptance from their family, there is a risk of attempts to alter their way of life. A power of attorney can serve as a protective measure. Having a power of attorney in place allows individuals to retain control over their lives even if they become incapacitated. It acts as a shield to protect their identity and ensure their wishes are respected, despite any opposition they may encounter from others. Regardless of age, gender, or sexual orientation, a power of attorney is a fundamental document that provides essential protection and support in various situations.