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Posted on Saturday, November 12th, 2016 by Peter Klenk

Lesbian couple sitting on the floor and laughing with funny dog

With Trump elected it might be a good idea for LGBT couples to review their estate plans

OurAsk a Questionmailbag addresses LGBT Estate Planning for Married Couples after President Trump’s election.

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?”

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.  Your spouse has medical decision rights when you are in the hospital incapacitated and without a medical directive.  This is a legally recognized right.

These same rights existed for all married couples upon recognition of same-sex marriage.  As a result, many lesbian and gay married couples didn’t bother with creating written authorization for each other to act.  They relied 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.

In conclusion, you may have other issues to address, so I suggest that we set up a phone conference. My firm focuses on only estate matters.  As a result, we are ready to address your specific situation. We would be happy to assist you with your LGBT estate planning.

Feel free to set up a phone conference!  Contact our office for a free consultation. We try to make the process as painless as possible.

Wills, Trusts, Probate, and Estate Litigation, It’s All We Do!

Peter Klenk, Esq., LL.M.

About the Author: Peter Klenk

Photo of Probate Lawyer Peter Klenk
Peter Klenk is the founding member of Klenk Law, a six attorney, boutique Estate Planning Law Firm.  The firm serves clients in Pennsylvania, New Jersey, New York, Minnesota and Florida. Peter received his Masters in Taxation LL.M. from NYU Law School and his J.D. from the University of Minnesota.  A veteran, he served his country in the Navy JAGC during Desert Storm.  Easy to talk to, feel free to call Peter for an appointment.  We will make the process as easy as possible!

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