How to Protect LGBTQ Marriages, Families, and Estates
Host (Jennifer Hargrave): In 2015, the United States Supreme Court issued its landmark decision Obergefell v. Hodges, which overturned the restrictions many states had in place on same-sex marriage. This meant that in states like Texas, bans on same-sex marriage were no longer enforceable. However, in a time of incredible uncertainty, as the U.S. Supreme Court overturns prior decisions, many families are left wondering about their future.
My guest is Lorie Burch. She’s the owner and founder of Burch Law in Dallas, where she focuses on estate planning and probate issues. Lorie is also very involved with the LGBTQ community and is here today to discuss what these uncertainties mean for same-sex families, as well as families with LGBTQ children. Thank you so much for being here today, Lorie.
Lorie Burch: My pleasure.
What LGBTQ Families Need to Know About Our Current Legal Uncertainty
Host: Let’s start by talking about the current landscape of laws for LGBTQ families.
Lorie: Yes, definitely. In light of the recent political climate, there is much more concern about what this could mean for the LGBTQ community—whether it’s families, individuals, or parents of LGBTQ kids. I’ve been discussing this as a time of uncertainty, which can feel debilitating.
We don’t know what may happen, but what we can focus on are the things we do know and the areas we can control. For me, that means estate planning. It’s an area where many people think, “I don’t have an estate,” or they confuse it with family law. Some people think estate planning is just about having a will, but it’s so much more. It includes wills, trusts, powers of attorney, guardianship for kids, planning for death, disability, hospitalization, and ensuring the right people can make decisions for you and your family.
For the LGBTQ community, there’s nothing special you have to do, but you must ensure these documents are in place. They’re vital for everyone, but particularly in this community. If we lose marriage equality, you won’t lose your ability to name who can make medical decisions, take care of your kids, or inherit property. That’s why it’s so critical to have a plan in place.
Marriage Equality Provides a Default Plan—But Is It Enough?
Host: What strikes me as you talk is that marriage equality provides a sort of default plan. But without taking proactive steps, what could happen?
Lorie: You’re exactly right—marriage does provide a default plan, but it’s often not enough. For example, one of the biggest misconceptions in Texas is that we don’t have joint tenancy for real estate. If you own a home with someone and one of you passes away, the property doesn’t automatically go to the survivor.
Even community property laws in Texas can complicate things. For example, your interest in a community property home might go to your children instead of your spouse if you haven’t properly planned. These situations play out all the time.
The Essential Estate Planning Documents Everyone Needs
Host: What are the essential documents families should have in place?
Lorie: Let me start by saying that a will or a living trust is foundational. A will is important because if you don’t have one, Texas will write one for you through its default laws. However, a will still has to go through probate court, which can take time and involve public records.
A living trust can avoid probate entirely. It’s more private and efficient. For LGBTQ families or families with trans or nonbinary children, a living trust can also help protect privacy and prevent will contests.
Other essential documents include:
- Medical Powers of Attorney: To designate who can make emergency medical decisions.
- HIPAA Releases: To ensure those people have access to medical records.
- Directives to Physicians (Living Wills): To outline your wishes about life support.
- Financial Powers of Attorney: To designate who can handle your finances if you become incapacitated.
- Declarations of Guardianship: To name who would care for you or your children if needed.
- Disposition of Remains Documents: To clarify your wishes for burial or cremation.
If you have children, you also need a healthcare agent designation to allow someone to make medical decisions for your child if you’re unavailable.
Why Privacy Matters for LGBTQ Families in Estate Planning
Host: You touched on privacy concerns for LGBTQ families. Why is that particularly important?
Lorie: A will becomes a public record once it goes through probate. For LGBTQ families, or any family dealing with potential discrimination, this could expose private details. A living trust offers privacy and reduces exposure.
Additionally, LGBTQ families often face challenges when dealing with individuals—whether in hospitals, banks, or courts—who might not respect their relationships. Having airtight legal documents is critical to ensuring your wishes are followed, even in the face of bias.
Second-Parent Adoptions: Why They’re Essential for LGBTQ Families
Host: Earlier, you mentioned second-parent adoptions. Why are they so important for LGBTQ families?
Lorie: In Texas, being listed on a birth certificate doesn’t automatically grant legal parentage. For non-biological parents, a second-parent adoption is essential to securing parental rights. It provides a legal foundation that can’t be challenged, even if laws or policies change.
How LGBTQ Families Can Prepare for an Uncertain Legal Future
Host: With all the uncertainty, what do you tell people who are worried about the future?
Lorie: Focus on what you can control. Implement a solid estate plan. If you’re an LGBTQ parent, pursue second-parent adoption now. Talk to your kids about these matters as they transition into adulthood. Taking these steps ensures you’re prepared, no matter what the future holds.
Take Action Now: Protect Your Family with Estate Planning
Host: This has been such an enlightening conversation. Thank you for your insights, Lorie. For those interested in learning more, we’ll include a link to Lorie’s website. Please subscribe to stay updated on similar topics.
