LGBT couples and families face unique challenges in the probate process.

In the LGBT community, the concept of a “chosen family” is prominent.[1] This is because members of the LGBT community are often estranged from their blood relatives and are less likely to have children than the general population.[2] This presents a problem, however, as family members by choice are given less deference by the law than family members by blood.[3]

Members of the LGBT community are not unaware of this, and studies indicate that they take greater care in planning their estates.[4] This use of greater care is something that all LGBT couples should exercise, but may need to know where to start.

Background

Prior to the ruling inObergefell v. Hodges,[5] same-sex couples did not have the legal benefits of marriage. In terms of estate planning, this presented a practical issue--without the legal benefits of marriage, a person’s same-sex spouse was technically a legal stranger who was disfavored over blood relatives in a plethora of common but critically important ways.

The case of In re Kaufmann’s Will[6] illustrates this point.

Robert Kaufmann’s family were the owners of Kay Jewelers and Robert was a multimillionaire.[7] Kaufmann was in a relationship with a man named Walter Weiss. Weiss moved in with Kaufmann and managed the household.[8] They vacationed together.[9] Weiss had access to Kaufmann’s bank accounts, safe deposit box, and was granted power of attorney from Kaufmann.[10]

Kaufmann died in a house fire and his will left most of his property to Weiss.[11] Kaufmann’s family contested the will in court, arguing that Weiss had unduly influenced him. The court agreed and the will was denied probate.[12]

Cases like In re Kaufmann’s Will demonstrate how difficult it was for same-sex couples to have their wills enforced.

Various legal strategies were devised in an attempt to ensure that a same-sex partner would receive their significant other’s estate, as in a opposite-sex relationship. One of these “work-arounds” was to have one same-sex partner legally adopt the other.[13] Adopting one’s partner gives the adopting partner priority over their blood family.[14] It is fortunate that, after cases like Obergefell, extreme legal tactics such as this are not as necessary as they once were in the United States.

Interference From Estranged Family Members

Because members of the LGBT community are often estranged from their blood family, a possible issue in estate planning is that those estranged family members will exploit their legal rights to interfere in the couple’s relationship and challenge the express desires of the individual.

In re Guardianship of Atkins[15] illustrates this point. Patrick Atkins and Brett Conrad met at college and fell in love.[16] Patrick’s family, however, “vehemently disapprove[d] of his relationship with Brett.”[17] Patrick suffered an aneurysm in 2005 that left him disabled.[18] Brett petitioned to be named Patrick’s guardian and Patrick’s family counter-petitioned that they be named Patrick’s guardians instead.[19] The trial court appointed the parents to be Patrick’s guardian and denied Brett visitation rights,[20] but on appeal, the court granted Brett the right to visit Patrick.[21]

Cases like Guardianship of Atkins are unfortunate cautionary tales for LGBT couples.

Intestate Succession and Children

When a person dies without a will, they die “intestate.” In such cases, the distribution of that person’s assets will be governed by state law.[22] Because of the preference given to blood relatives by the law, intestate succession can be a fraught process for same-sex couples.

Under Florida law, de facto parents do not have the same rights to their children as biological or adoptive parents.[23] Only a biological or otherwise legally recognized relationship confers any legal benefits.[24]

Thus, to ensure that their express instructions are carried out when incapacitated, hospitalized or when they have passed, an LGBT individual should adopt a customized estate plan for their needs and wishes.

Basic Estate Planning

A basic estate plan involves a will, a durable power of attorney, a living will, a HIPAA release, and a healthcare surrogate.

Will

A will is a document that indicates how a person’s assets will be managed or distributed upon their passing. It is vital that there be a will if an LGBT couple wishes to avoid intestate succession (administration without a will under state law).[25] In order to be valid, a will must be signed or acknowledged as having been signed by someone else in the name of the will’s creator.[26] The will must also be signed by two attesting witnesses.[27]

Durable Power of Attorney

A power of attorney is a document that authorizes someone to act on one’s behalf.[28] A durable power of attorney is a power of attorney that continues even if the principal (the person giving the power of attorney) becomes subsequently incapacitated, such as lapsing into a comatose state.[29] In Florida, a durable power of attorney must be signed by the person granting the authorization and by two subscribing witnesses.[30] The power of attorney must also be acknowledged before a notary public.[31]

Living Will

A living will “. . . is a document announcing the maker's intent and wish concerning life-prolonging procedures should a terminal or other stated condition befall the maker.”[32] Like a normal will, a living will must be signed by the person making the will, as well as two subscribing witnesses.[33]

Healthcare Surrogate & HIPAA Release

This document designates one or more individuals to make medical decisions on another’s behalf. A healthcare surrogate, also sometimes referred to as a “healthcare power of attorney,” may also grant permission for the designee, known as the agent, to access the principal’s medical records.[34] A document appointing a healthcare surrogate must be signed by the person making the appointment and two subscribing witnesses.[35] The agent is also able to make decisions regarding mental healthcare, but the law allows an individual to appoint a separate surrogate for mental health treatment.[36] A HIPAA Release is a document that expressly authorizes one or more individuals to access the medical records of the maker.

Specific Concerns for LGBT Couples

Estate planners highly recommend that anyone planning their estate make use of these documents, regardless of membership in the LGBT community. However, this estate plans are especially important with LGBT couples. Many American LGBT couples may have married out of state or country prior to the legalization of their marriages or don’t necessarily subscribe to traditional marital accoutrement such as the wearing of wedding rings or getting married in the first place. Unfortunately, while simply stating the existence of a marital relationship may be sufficient for opposite sex couples when visiting in the hospital or attempting to access medical records in the event of an emergency, LGBT couples often have a greater burden of proof at these already extremely stressful times. Preparing these documents before an emergency can ensure easier and more swift access to records to make informed decisions.

For example, the durable power of attorney and healthcare surrogate documents can be used to ensure that one’s chosen family members are given the desired amount of control over their affairs rather than blood relatives. Even those who are on good terms with their blood relatives may need to find a method of legally expressing their wishes for not only their own care, but the care of their biological or adoptive children including who they desire to care for their children in the event of their incapacity or death.

Other Recommended Steps

Revocable Living Trust

Revocable living trusts are legal entities that one can transfer control of their assets to.[37] Because the creator of the trust often controls these types of trusts, they effectively retain control over their assets, but with the added benefit of being able to avoid probate proceedings.[38] The trust carries on its existence even after its creator dies; the creator can dictate how the trust’s assets are to be treated after they die in the document creating the trust.[39] With a revocable living trust, an LGBT couple can avoid the probate procedure altogether and exercise greater control over the distribution of their assets after death.

Preneed Guardianship

A preneed guardian is an individual named by someone to serve as their guardian should they become incapacitated.[40] If someone becomes incapacitated, the preneed guardian will assume guardianship responsibilities immediately after a court deems them incapacitated.[41] The preneed guardian must still petition to have their appointment confirmed, and if they are qualified, the court must confirm them.[42] Preneed guardianships add an extra layer of certainty by expressing in advance to the court that an incapacitated person’s preferred caretaker is appointed to be their legal guardian.

Conclusion

LGBT couples and partners face unique obstacles in planning their estates, but with due diligence in their estate plans they can address these obstacles and ensure their last will and testament are fulfilled.

[1] Nancy J. Knauer, LGBT Older Adults, Chosen Family, and Caregiving, 31 J.L. & Religion 150, 158-159 (2016).

[2] Id. at 158.

[3] Id. at 159.

[4] Id. at 166 (indicating “ . . . LGBT older adults cannot rely on the legal default settings in place in the areas of estate planning and decision making to protect their interests and reflect their priorities. The LGBT community has placed strong emphasis on advance planning as a means to protect chosen family, especially unmarried partners. Studies show that more LGBT older adults have wills and durable powers of attorneys than their non-LGBT peers . . . “).

[5] Obergefell v. Hodges, 576 U.S. 644 (2015).

[6] In re Kaufmann’s Will, 247 N.Y.S.2d 664 (N.Y. App. Div. 1964).

[7] See Kyle S. Schroader, A Brief History of Pre-Obergefell Same-Sex Estate Planning: Adult Partner Adoption, Kentucky Law Journal (Sept. 16, 2022, 10:07 AM), https://www.kentuckylawjournal.org/blog/index.php/2018/09/27/a-brief-history-of-pre-obergefell-same-sex-estate-planning-adult-partner-adoption.

[8] Kaufmann’s Will, 247 N.Y.S.2d at 667 (“Weiss took full charge of the establishment, its furnishing, the employment of help and the maintenance of the household. All mail and incoming telephone calls were routed to and through Weiss”).

[9] Id. (“[Kaufmann] and Weiss traveled to Paris in 1950 for a few months; to Europe, West Indies, the Virgin Islands, Haiti, Greece and other countries during 1952 and 1953 and around the world in 1956”).

[10] Id. at 670 (“Thereafter, until Robert's death, Weiss had the power to draw against all Robert's bank accounts. In 1951 Weiss acquired a general power of attorney from Robert. Weiss had unrestricted access to Robert's safe deposit box”).

[11] Id. at 677 (quoting a letter mailed by Kaufmann to his attorney) (“I now wish you to make a new, very simple will for me, leaving all property, real estate, tangible assets, etc., plus a beneficial life interest in the Kay Jewelry Store stocks . . . to Walter A. Weiss”).

[12] Robert Kaufmann was apparently a very meek and insecure person, but became more assertive and independent after befriending Weiss.  See Id. at 671 (summarizing, then quoting, a letter from Kaufmann explaining how his life was at a “nadir” before Weiss uplifted him). This newfound independence, apparently catalyzed by Weiss, was the basis for the alleged undue influence. See Id at 688 (Witmer, J., dissenting) (“Contestants charge that Weiss was the cause of their business differences with testator. They assert that Weiss was the mastermind behind all of testator's demands in his business relations with them, and who in the background prepared the letters which testator sent to them, many of which are in evidence. They also contend that Weiss used the differences thus arising between testator and his brothers as a means of encouraging testator to change his will in Weiss' favor; and there is evidence that Weiss had a hand from time to time in advising testator's attorneys as to testamentary changes testator desired”).

[13] Schroader, supra.

[14] See In re Cowell, 71 N.Y.S. 3d 450, 451 (N.Y. App. Div. 2018) (finding that a decedent’s brother was precluded from becoming the distributor of her estate because the decedent had been adopted by her same sex partner).

[15] In re Guardianship of Atkins, 868 N.E. 2d 878 (Ind. Ct. App. 2007).

[16] Id. at 881.

[17] Id.

[18] Id.

[19] Id at 882.

[20] Id. at 882-883.

[21] Id. at 888 (“The judgment of the trial court is . . .  remanded with instructions to grant Brett visitation and contact with Patrick . . . “).

[22] See Fla. Stat. § 732.101 (2022) et. seq. for Florida’s intestate successions laws.

[23] Russell v. Pasik, 178 So.3d 55, 59 (Fla. 2d DCA 2015) (“. . . the law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights . . . as the biological or legal parents”).  

[24] Compare Russell v. Pasik, 178 So.3d 55 (Fla. 2d DCA 2015), with In re Cowell, 71 N.Y.S. 3d 450 (N.Y. App. Div. 2018).

[25] Fla. Stat. § 732.101 (2022) (“Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code”).

[26] Fla. Stat. § 732.502(1)(b) (2022).

[27] Fla. Stat. § 732.502(c) (2022).

[28] Fla. Stat. § 709.2102(9) (2022).

[29] Fla. Stat. § 709.2104 (2022).

[30] Fla. Stat. § 709.2105(2) (2022).

[31] Fla. Stat. § 709.2105(2) (2022).

[32] 15 Fla. Prac., Elder Law § 27:28 (2021-2022 ed.).

[33] Fla. Stat. § 765.302(1) (2022).

[34] 15 Fla. Prac., Elder Law § 27:46 (2021-2022 ed.).

[35] Fla. Stat. § 765.202(1) (2022).

[36] Fla. Stat. § 765.202(5) (2022).

[37] See 14 Fla. Prac., Elder Law § 10:39 (2021-2022 ed.).

[38] See Id.

[39] See 14 Fla. Prac., Elder Law § 10:39 (2021-2022 ed.).

[40] See Fla. Stat. § 744.3045(1) (2022).

[41] Fla. Stat. § 744.3045(5) (2022).

[42] Fla. Stat. § 744.3045(7) (2022).