From our “Ask a Question” Mailbag: LGBT Estate Planning after Trump

Most Recently Updated August 9, 2018.

“My wife and I are a same-sex married couple.  We married in New Jersey and now live in Pennsylvania.  Trump’s election makes us nervous, we are afraid that he may strip away some of our married couple rights. What estate planning documents should we sign to make sure that we have the right to make medical decisions for each other should one of us get sick?”

LGBT Estate Planning after Trump

LGBT Estate Planning after Trump

Must-Have LGBT Estate Planning Documents.

I hear this concern from many LGBT married couples.  Of course, at this time there is no known official plan to limit the hard-fought rights obtained over the last few years.  But, the concern rises from the Trump advisors’ well known anti-gay and lesbian backgrounds.  For this reason, people wish to prepare for the worst.

Spouses Are the First to Speak for an Incapacitated Spouse’s Medical Care.

Once you married, you may have felt access to your ill partner was no longer an issue.  Typically, if you become incapacitated your spouse has medical decision rights.

These same rights have existed for all married couples and were automatically applied to LGBT married couples upon recognition of same-sex marriage.  As a result, some lesbian and gay married couples feel there is no longer a need to create a written authorization for each other to act.  They instead are relying on the law’s protection.

Time for a Medical Power of Attorney and Living Will.

Owing to the background of many in the new administration, there is concern that a campaign to limit same-sex couple rights may begin.  A “death by 1000 cuts” campaign.  Limiting medical access for same-sex couples in favor of other family members might be one of those cuts.

To counter this, utilize your legal right to pick any person as your Agent or Surrogate.  You have the right to nominate anyone as your fiduciary.  Married or not, this is true. Your spouse has no right to overrule your written decision.  Consequently, while there might be some change to the rule covering who speaks for you medically if you have not signed a Medical Power of Attorney, this would be “trumped” by your naming your same-sex spouse in your Medical Power of Attorney.

While it is true that documents vary slightly from state-to-state, you will sign a Medical Power of Attorney and Living Will. By nominating your spouse Agent and Surrogate your spouse may act on your behalf unhindered administratively or legally.

Durable Power of Attorney and Will Also.

You only asked about medical care, but also execute Durable General Powers of Attorney and Wills.  The General Power of Attorney covers financial decisions. Alternatively, the Will addresses who will control your estate after your death.  LGBT Estate planning isn’t restricted to medical issues.

For more information, see my website for Estate Planning for LGBT Couples. 

More Planning Questions?

LGBT Estate Planning After Trump is only a piece of the Estate Planning process. By all means, if you want to learn more, please read my more detailed article, Estate Planning Everything You Need to Know.

In Conclusion: LGBT Estate Planning After Trump

I hope that this article was helpful in explaining LGBT Estate Planning After Trump. Further, I included links to even more detailed information on my website so you can learn more. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Estate Planning lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced estate planning lawyers.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!

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