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While the U.S. Supreme Court recognized same-sex marriage in 2015, some LGBTQ+ persons might still experience prejudice, including from unsupportive family members. As such, LGBTQ+ persons may need to take extra care to safeguard estate planning documents from attempts by said family members to disregard their wishes. The absence of valid and enforceable estate planning documents that clearly and unequivocally state your wishes leaves open the possibility for unsupportive relatives to try and have themselves deemed a legal heir or default executor, guardian, conservator or decision-maker.

“Defensive drafting,” a practice used by estate attorneys, involves crafting estate plans with an eye toward possible objections by third parties. And the issue of defensive drafting is not unique to LGBTQ+ communities. Many common family situations give rise to increased risk of conflict, such as blended families (with tension between step-parent and step-children), unequal distribution of family assets between heirs, situations where capacity is questionable or unmarried partners. The common thread is that the possibility of family disputes may be foreseeable, and defensive steps can be taken in advance to reduce the risk of future problems.

Recommended actions to discuss with your estate planning attorney

  • Create robust estate planning documents, even if legally married and state default laws are currently LGBTQ+ friendly. Laws can be changed or invalidated by courts with little notice, or you could relocate to another state with fewer protections for LGBTQ+ persons.
  • Consider strong anti-challenge provisions in documents such as “no contest” clauses that severely penalize any legal attack by disgruntled family members. Such provisions, while not always successful, create deterrents as “poison pills” to bringing disputes into court. Emphasize with your estate planning attorney the need to be absolutely clear in the documents that unsupportive family members are not to receive any benefit under your estate plan.
  • When mental capacity could ever be questioned at the time documents or amendments are being drafted, obtain a written medical opinion letter that the patient has adequate capacity to make the desired estate planning decisions. Family members frequently argue that the LGBTQ+ senior has diminished capacity and/or is the subject of undue influence. Contemporaneous medical evidence of adequate capacity can be a strong disincentive to litigation.
  • Carefully review and periodically update all beneficiary designations, and have estate planning documents reviewed and updated on a regular basis assuming they will eventually be challenged.
  • Consider writing a letter to unsupportive family members expressly informing them about your plans, well in advance of incapacity or death, and keep a copy of those letters with your planning documents.
  • Consideration of asset protection solutions may be advisable in extreme cases, such as “self-settled” asset protection trusts which can be established under the law of states which grant such trusts varying levels of protection from judgments resulting from third party litigation.

Contemplating future family estate litigation is not pleasant, but common sense actions can materially reduce the risk that such disputes ever arise.

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