Estate Planning 101 for LGBTQ Couples

Estate Planning 101 for LGBTQ Couples

Probate & Estate

It’s true, most couples can benefit from estate planning. It’s a way to ensure your assets end up in the right hands after you die, and that your health care wishes are followed. But LGBT couples in particular often have special situations that require extra planning.

Here are five steps that LGBTQ couples can take to get started with estate plans.

1. Know your marital status

The Supreme Court’s decision in 2015 legalized same-sex marriage in the United States, but the patchwork of prior state laws has had some unintended consequences when it comes to estate planning, because assets typically flow directly to a spouse upon death, it’s important to be sure past relationships really are history.

For example, prior to 2015, some same-sex couples got married in states where it was legal, but then moved to states that didn’t recognize those marriages and later broke up. Thinking their nuptials weren’t valid in the non-legal states, many couples split up but never dissolved their marriages legally speaking. In addition to that, some states automatically converted registered domestic partnerships or civil unions into legal marriages.

Resulting in a lot of people being married and not knowing it.

2. Look beyond a will

A will seems like a no-brainer, especially if you have children from previous relationships or those who had children before legally marrying. Without one, it’s often unclear where assets should go when the last partner dies.

Same-sex couples shouldn’t stop there though. A power of attorney is also a good idea since it gives a spouse or someone else the power to act on your behalf if you are incapacitated.

Setting up a trust can also help, especially if there are concerns about battles over your assets after you die.

Unfortunately, same-sex couples families are more apt to contest the will than heterosexual couples because more LGBT people tend to be estranged from their birth families.

Couples can put their assets into a trust, and when one of them dies, there’s less of an opportunity to contest it, because trusts usually don’t go through probate.

3. Think about your medical needs

Think about this, if you are injured and in a coma, and the prognosis isn’t good, the harrowing decision to “pull the plug” has to go to someone. Think about who you would want making that choice for you. No matter who it is, you want to be sure it’s documented.

There are several options, but the two most popular ones are:

A health care surrogate sometimes referred to as a health care proxy, is someone you choose to make medical or spiritual decisions for you, typically if you’re incapacitated. It can also authorize doctors to share your medical information with specific people of your choosing.

A living will, a do-not-resuscitate or other kind of health directive, which documents your preferences about medical treatment when you can’t communicate. This is useful in a case where you know you wouldn’t want to “live” on life support for years but you don’t think your partner will give the ok to pull the plug. You can essentially document in your will that you only want to remain on life support for….let’s say 6 months, but after that, you wish to be removed from life support. The decision no longer rests in your partner’s hands.

4. Plan for the children

Typically, when parents die, their assets pass on to their children, but to ensure this happens some same-sex parents might need to make adoption part of their estate planning if they haven’t already. This is because it’s more common for only one of the parents to be biologically related to the child.

The idea is to ensure that your assets flow to the children rather than to aunts, uncles or other family members. If there’s been no legal determination of the child, and your partner doesn’t have an estate plan, the child may not get anything.

If only one spouse or partner is legally recognized as the parent, adding a trust with certain provisions will at least ensure the non-legal parent remains in contact with the child if someone else becomes the guardian.

5. Don’t just wing it

LGBT couples should generally avoid do-it-yourself estate planning services online. Most of the forms there don’t account for the needs of same-sex couples.

If you have questions about estate planning, contact Chuck Bendig to set up a free consultation. With more than 39 years experience, we make it easy for you to understand LGBT Estate Planning so you can make the best decisions for yourself and your family.

Getting Re-married? Consider second spouse planning.

Getting Re-married? Consider second spouse planning.

Probate & Estate, Wills

No one wants to think about their untimely death. Especially after you’ve just been given a second chance at love. However, if you’ve just gotten remarried and you have children from your first marriage, how do you ensure that both your new spouse and your children receive an inheritance if you die? Do your children or your new spouse get the house? How will your new spouse get by financially if you choose to provide an immediate inheritance for your children?

You want to make sure that your children won’t be disinherited if you leave everything to your new spouse, who then can ultimately will the money elsewhere. Your current will could be fraught with risks that could cause your children to be disinherited.

Here are some possible solutions:

  • Pass your assets to a revocable trust agreement that’s funded during your life through your will or through beneficiary designations. The trust is revocable at any time, so you’re able to change your mind. Upon your death, the trust becomes irrevocable and would benefit your spouse and children.
  • Invest assets to make them income-producing and pay all the income to your new spouse for the rest of their lifetime, while still preserving the principal for your children. Upon your spouse’s death, the remaining principal of the trust goes directly to your children outright or in further trust.
  • You can also choose to name an independent trustee who will have the power to pay a portion of the principal to your new spouse if there’s a need. You can even have your second spouse’s interest in the trust end upon remarriage.

 

Through proper planning, you can maintain control over your assets to prevent disinheritance of your children, while at the same time, providing for your spouse. However, if you don’t make specific arrangements, here’s a broad look at what may happen to your assets, although this may vary with state law and other situations:

  • Your second spouse may be able to claim 1/3 to 1/2 of the assets covered by your will, even if your will specifically states something else. Click here to learn more. 
  • Joint bank or brokerage accounts held with a child will go to that child.
  • Your IRA and/or 401K will go to whomever you’ve named as beneficiary. Contrary to what you may have been told, wills do not supersede these beneficiary elections.

If you want a different arrangement, you and your spouse must have a written prenuptial agreement that meets your state’s inheritance laws. You’ll need to change beneficiary forms.

These financial issues merit serious consideration. Competing interests of your adult children and your second spouse may induce additional heartache once you’re gone. In the case of blended families, it’s always wise to have a professional evaluate your existing will to ensure your desires are carried out.

The time between Christmas and New Years is deadliest for drivers. Here’s why…

The time between Christmas and New Years is deadliest for drivers. Here’s why…

Vehicle Accident

According to the National Highway Traffic Safety Administration, the Holidays (between Thanksgiving and New Years) are considered the “deadliest of the year” in terms of auto accidents.

If you’re involved in a car accident when you’re not at fault, and you suffer an injury, you may have the right to file an accident claim. You should hire an attorney as soon as possible to find out what your rights are.

It’s also a good idea to learn why car accidents are more frequent around the holidays. Here are the top 4 reasons.

1. Too much “indulgence” at Holiday parties
Almost 40% of all fatalities that occur during the Christmas holiday period involve at least one driver who was impaired by alcohol. People are attending office parties or family parties, having a great time, and there is a tendency to overindulge. While you may know you shouldn’t drink and drive, even “just a few” can have serious consequences. It’s always best to avoid getting behind the wheel, even if a person only has one or two drinks. Utilize driving services such as Uber or Lyft.

2. Increased Holiday Stress
The Holidays are as stressful as they are cheerful. Coordinating holiday events, having a house filled with family, and the crowded shopping excursions, can all lead to increased amounts of stress. Especially when dealing with holiday traffic. People have a tendency to become sloppy when it comes to safety and neglect the rules of the road. That stress can create mental distractions, resulting in a higher likelihood of a car accident.

3. Increased traffic
During the month of December and January, there are more vehicles on the road than any other time during the year. This, of course, results in the potential of more car accidents. A factor that’s compounded when out-of-towners are added to the mix. People traveling in the area won’t be familiar with the roads, which means more people slamming on their breaks when they realize they’ve missed their exit. As a result, it is best for people who will be driving to give themselves more time to reach their destination and try to be more vigilant.

4. Improper Vehicle Maintenance
During the holidays, money is usually tighter than the rest of the year. Drivers begin skimping on vehicle maintenance and instead use the money to buy gifts. This is never a good idea and could result in you being stranded on the side of the road or a larger final repair bill. One way to avoid car accidents is to invest in vehicle maintenance during the holiday season, just like you would during other times of the year.

If you’re involved in an auto accident during the holidays and it’s due to someone else’s negligence, call Attorney Chuck Bendig at 614-878-7777. He can review the facts of your case and determine whether or not you have the right to file a lawsuit.

What happens to him if something happens to you?

What happens to him if something happens to you?

Probate & Estate, Wills

In 2011, entrepreneur and Columbus Ohio native, Nick Braun adopted a rescue lab mix and named him Beau. Beau quickly became a member of the family. So, it’s only natural he would want to take care of him just like any other family member. That included health insurance (Nick created petinsurancequotes.com) but also making provisions for Beau in the event something should happen to Nick.

For many people, it’s a multistep process to make sure the designated caregivers have the financial support and guidance they need to assume care of your beloved pet.

You can’t just say, ‘Hey Dad, can you take the dog if something happens?’, but that’s exactly what most pet owners do (if anything at all). Including your pet into your estate plan can help ensure they receive a continued high level of care should you die before they do. Having them listed in your estate plan could also keep them out of a shelter, which is where many pets end up after their owners die.

When beginning your estate plan, here are a few things to consider:

Name a caregiver.

When thinking about choosing a caregiver for pets, you should consider whether that person is willing, capable and responsible enough to oversee the pet for the long term. Special accommodations could be needed if a pet has a long lifespan or special needs.

Consider monetary expenses.

Make a list of all pet-care costs, taking into account the pet’s expected lifespan. Add up the annual expenses for veterinary care, any medications, monthly grooming, food, and toys as well as a contingency for unanticipated expenses.

Next, determine how those funds should be set aside. Some options include a trust, a bank account controlled by an executor (or by the guardian) or life insurance. Keep in mind that the beneficiary of a life insurance policy can’t be a pet, but it can be a trust that includes provisions for a pet’s care.

Outline a care plan.

Write down clear and detailed instructions on how you would like your pet to be cared for. For example, you can make a list that includes the food your pet eats, how often a day they’re fed, the contact information for your preferred kennel, and the information for any pet-insurance policy as well as his veterinarian contact info.

Formalize agreements.

Once the basic decisions about a pet’s care have been made, owners should formalize things to help ensure that their wishes are carried out. Some people create a pet trust for their animals. Others provide for pets in their wills. Both options require assistance from a lawyer. An owner who goes this route should make sure someone can step in immediately to care for the pet since executing a will usually takes some time. Once the administration of an estate is wrapped up, the will’s executor has no continuing obligation to ensure the pet’s well-being.

 

Whichever option you decide, estate planning attorney Chuck Bendig is here to help. The idea is to protect the ones you love, whether they’re human family, furry or feathered.

You’ve been served Divorce papers…now what?

You’ve been served Divorce papers…now what?

Divorce/Dissolution

Sometimes divorce is filed after years of separation and is well anticipated. In other cases, it can come as a complete surprise to the person receiving paperwork. After receiving divorce papers, you must take immediate action to protect your legal rights and future.

1. Read the Papers

It’s important that you carefully read over the divorce papers, as they may contain a wealth of information, such as the court where the action was filed. This can be helpful information to know if you and your spouse have been estranged and the divorce is being filed in another state. The divorce papers should also list a deadline by which a response must be provided. Additionally, they will indicate whether your spouse is filing the paperwork on their own if they have retained an attorney.

Additionally, the divorce papers may allege the grounds for divorce, as well as requests by the moving party, including information about child support, spousal support, division of property, child custody and other issues related to the children.

2. Provide a Response

The divorce papers should indicate the number of days that you have to respond to the complaint or petition for divorce. This is usually 28 days, starting from the date when you were actually served with the divorce papers. However, you should be certain on this information. If you allow the deadline pass without responding, your spouse can potentially receive everything they requested in the divorce paperwork. Probably not ideal for you.

Normally, a person will provide a response through his or her attorney. However, if you cannot come up with the funds necessary to retain an attorney, you may have to provide a response on your own. Otherwise, you can forfeit your rights and legal arguments.

3. Hire an Attorney

Divorce can have a dramatic effect on a person’s life, so it’s important to retain legal counsel if at all possible. Even if you receive the paperwork and believe you’re in agreement with the divorce and allegations, a divorce attorney can review the documents and inform you of your legal rights and options. If the case later becomes contested, you’ll have someone who can advocate for your rights.

It’s especially important for you to retain an attorney if your spouse already has.

4. Gather Documents

If your spouse has already contacted a lawyer, they will likely ask you to bring in certain documents when you arrive at the initial hearing or later such as tax records, bank statements, retirement information, payroll information, and other financial information.

5. Protect Your Assets

You should also discuss how you can protect your assets. Some jurisdictions immediately call for all assets to be frozen once a divorce petition is filed with the court.

If your income is directly deposited to a joint account, you should consider setting up a separate bank account and re-routing the funds to this account. You should also pull your credit report to check your financial wellbeing and to see if any recent debt has been taken on of which you weren’t aware.

6. Protect Communications

It’s also extremely important to have your mail rerouted to maintain privacy from your spouse during divorce proceedings. Lawyers may send letters with strategic plans, and this information shouldn’t be revealed to your spouse. A post office box can help protect privacy and confidential communications.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.