Wednesday, January 20, 2010

Estate Planning for Lesbian Gay Bisexual and Transgender Individuals and Families

Last night, attorney, Jeremy Cooper, attended a Las Vegas Chamber of Commerce seminar hosted by the Human Rights Campaign addressing Smart Financial and Estate Planning for LGBT individuals and families. Half of the presentation focused on the new Domestic Partnership law of Nevada and the current state of this evolving area of law. The other half focused on estate planning for LGBT indviduals and families. The following is a brief overview of the recently enacted Domestic Partnership legislation followed by some estate planning recommendations for those in the LGBT community:

Domestic Partnerships

During 2009, the Nevada legislature enacted legislation recognizing Domestic Partnerships between individuals who have properly registered with the state. A Domestic Partnership is a social contract between two persons that grants each partner different rights not available to non-married couples. To establish a legal Domestic Partnership, partners must furnish proof to the Secretary of State that both persons share a common residence, neither partner is married or part of another domestic partnership, the individuals are not related by blood, both individuals are at least 18 years of age, and both individuals are competent to consent to the domestic partnership.

Upon establishing a valid Domestic Partnership, domestic partners have the same rights, protections, and benefits granted to married spouses. Domestic partners are also subject to the same responsibilities, obligations, and duties under law as imposed upon married spouses. These rights and obligations include, but are not limited to, child support, alimony, community property rights, mutual responsibility for debts to third parties, etc. Deciding whether a couple should register as a Domestic Partnership is a very intimate and personal decision that should not be made without understanding the legal ramifications of doing so. Jeffrey Burr recommends consulting with a family law attorney who is experienced in dealing with the LGBT community.

Estate Planning Tips

Because of the unique legal challenges facing the LGBT community, it is vital that valid and comprehensive estate planning be put into place regardless of whether a committed LGBT couple decides to register as a Domestic Partnership in Nevada. First and foremost, proper estate planning by LGBT individuals should ensure that the right people are making the right decisions regarding one’s health care and asset management when the time comes, as well as distributing property to the intended beneficiaries at death. LGBT individuals and couples should strongly consider obtaining the following documents:

1. Powers of Attorney for Health Care and Financial Matters and Directives: These documents are extremely important for LGBT couples who decide not to register as Domestic Partners and for Domestic Partners when traveling outside of the state of Nevada or other states that do not recognize Domestic Partnerships. These are the documents that will allow your partner to make health care and asset management decisions for you if that is what is desired.

2. Wills and/or Trusts: These documents are also very important because they will determine to whom your property will be distributed at your death. Without a will or a trust, property will pass to ones heirs as determined by the state laws of intestacy which does not provide for property to pass to an LGBT partner unless the partnership has registered as a Domestic Partnership. These documents will also nominate guardians for one’s estate, person and minor children.

3. Partnership Alliance Agreement or Property Agreement: This document is essentially the same type of agreement as a Premarital, or Prenuptial, Agreement in that it establishes property brought into the partnership, how new property and income will be treated during the partnership, and how property will be distributed upon dissolution of the partnership. These documents can be prepared for LBGT couples whether or not they have registered as domestic partners.

-Attorney Jeremy Cooper

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