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Estate Planning for LGBTQ+ Families Is Crucial. Here's What You Need to Do

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Everyone should have an estate plan. For LGBTQ+ families, it may be even more critical.

Members of the LGBTQ+ community are less likely to be married or they may have children where only one partner is the biological parent, said Gina Nelson, head of fiduciary services at Chilton Trust Company in Palm Beach, Florida.

That means they need to ensure that the proper documents, such as powers of attorney and a will, are in place in the event of an illness or death.

"For non-married partners, those things are extremely important because under the law their partner is not going to have the standard rights to information and the ability to make health-care decisions on behalf of their partner if something happens." Nelson said.

"They will not be able to access bank accounts if they are not in joint names."

Same-sex marriage was legalized in all 50 states in 2015, and about 58% of couples in the nation's 980,000 same-sex households are married, according to the U.S. Census Bureau.

"There is an assumption that estate planning is only for those with an exorbitant amount of wealth," said Chase Vedrode, a Chicago-based financial advisor with Northwestern Mutual.

"It is for all people, regardless of wealth."

Here's what LGBTQ+ families need to know when it comes to making an estate plan.

Protecting your children

In LGBTQ+ couples with children, only one parent might be the biological parent, or neither might be. They may have used an egg or sperm donor to conceive, or a surrogate to carry the child.

There are varying rules across states about parental rights, but from a legal perspective, the biological parent is the one with the legal rights, barring any other court documentation, Nelson said.

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Even a birth certificate with both parents' names on it may not be enough.

"The bottom line is what you really, really need is a court order that says these are the parents," she said.

That document can be an adoption or a parentage judgement, depending on the state.

Will

Unmarried partners are not entitled to any inheritance if there is no will in place.

A last will and testament lays out who your assets should go to after you die. It also allows you to name a guardian for your minor children.

"It can help your family avoid disputes that might arise if there is not a plan in place or if it is not clearly stated," Vedrode said.

Durable power of attorney

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A durable power of attorney authorizes someone else to make financial decisions if you are unable. That person can gain access to your bank accounts and pay your mortgage, rent or other bills for you.

Health-care power of attorney

Also known as a health-care proxy, this document authorizes someone to step in and make decisions about your medical needs when you can't do it yourself.

Living will

A living will, also called an advanced directive, lets you spell out your wishes for medical treatments you want or don't want to use to keep you alive. Your health-care proxy must abide by your directive.

Getting help

While you can get these documents online, Vedrode advises hiring an attorney who specializes in LBGTQ+ couples. If you don't know an attorney, ask your financial professional for a recommendation.

"It is important to make sure you have someone who understands the nuances and can help navigate this complex issue," he said.

Your plan will also have to be revisited as your family unit evolves and as laws change.

"Work with someone who will get to know you and your unique concerns and considerations," Nelson said.

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