How Estate Planning Can Protect the Dignity, Identity and Legacy of LGBTQ+ Individuals

As we recognize LGBTQ+ Pride Month, it is important to reflect not only on progress, but also on the legal uncertainties that may lie ahead. For LGBTQ+ individuals and families, estate planning remains one of the most effective tools to ensure that personal relationships, financial interests, and healthcare decisions are respected regardless of future shifts in the legal landscape.

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Why Estate Planning Matters Now More Than Ever

Although marriage equality has expanded legal protections for many LGBTQ+ couples, these rights are grounded in laws that could change. Estate planning provides certainty and control, allowing individuals to protect their loved ones no matter what happens in the future.

Before same-sex marriage was legalized nationwide, LGBTQ+ individuals relied heavily on estate planning to create legal recognition for their partners and chosen families. That need has not disappeared, it has simply evolved.

A powerful example is the case of Sharon Kowalski and Karen Thompson. After Kowalski suffered a traumatic brain injury in 1983, her father was appointed as her guardian and barred Thompson (her long-term partner) from visiting her. Thompson spent years in litigation before ultimately gaining legal recognition of her role in Kowalski’s life. This case highlights risks LGBTQ+ individuals face without legal clear documentation of their signific ant personal relationships.

The Limits of Default Law: Intestate Succession
When a person dies without a will, their assets are distributed under state law, a process known as intestate succession. In New York, this means property passes to legally recognized relatives, such as a spouse or biological family members.

For many LGBTQ+ individuals, this default structure does not reflect the reality of their lives. Chosen family members, close friends, long-term partners, or others who function as family have no automatic legal right to inherit without proper estate planning.

What Estate Planning Includes
Estate planning is the process of putting legal documents in place to ensure your wishes are carried out both during your lifetime and after death.

During Your Lifetime

Key documents include:

• Durable Power of Attorney – Appoints someone to manage your financial affairs
• Health Care Proxy – Designates a person to make medical decisions on your behalf
• Living Will – Provides guidance on end-of-life care
• Hospital Visitation Authorization – Ensures loved ones can access you in medical settings

These documents are especially important for LGBTQ+ individuals, as they clearly identify trusted decision-makers when legal recognition may otherwise be unclear.

For Transgender individuals, health care proxies are a means of ensuring that medical care aligns with their needs and that their identity is honored at every stage. If a person becomes incapacitated without a health care proxy in place, state law typically gives decision-making authority to the next of kin, who may not understand or respect that person's gender identity. A properly drafted health care proxy can:

• Authorize a trusted agent to advocate for gender-affirming care, including continued hormone replacement therapy (HRT) where medically appropriate
• Direct providers to use correct names, pronouns, and gender identity
• Reduce the risk that care decisions will be influenced by bias, misunderstanding, or family conflict

This level of specificity matters. Transgender individuals may face barriers to accessing gender-affirming care even under existing legal protections, and treatment decisions can be influenced by others if authority is unclear.

After Death
Estate planning documents that take effect after death include:

• Last Will and Testament – Directs how your assets should be distributed
• Appointment of Agent for Disposition of Remains – Specifies who controls funeral and burial decisions and provides guidance on wishes regarding cremation, burial or other disposition of remains. A properly executed disposition-of-remains document allows individuals to:
  • Appoint a trusted person (such as a partner or chosen family member)
  • Ensure that their gender identity is respected in death
  • Specify details regarding burial, cremation, naming, and memorial services

In this way, estate planning not only protects assets, it protects dignity, identity, and legacy.

Trusts: Protection During Life and After Death
Trusts, particularly revocable living trusts, are among the most powerful and flexible estate planning tools.

Understanding Probate—and How to Avoid It
Probate is the court-supervised process of validating a will and administering a person’s estate. While sometimes necessary, probate has several drawbacks:

• It is public, meaning personal and financial details become part of the court record
• It may invite challenges from disapproving family members
• It can be time-consuming and costly

For LGBTQ+ individuals, probate can create additional risks. A biological family member who opposes a same-sex relationship may attempt to contest a will that benefits a partner or chosen family member. Even unsuccessful challenges can lead to delays, expenses, and emotional strain.

Marriage and Probate
Marriage offers certain probate-avoidance benefits, as assets can pass directly to a surviving spouse. However, probate is often still required after the second spouse dies, and these protections depend on the continued recognition of marriage rights for LGBTQ+ couples.

How Revocable Living Trusts Provide Greater Security
Revocable living trusts can help avoid probate entirely by transferring ownership of assets into a trust during your lifetime. Upon death, those assets pass directly to beneficiaries without court involvement.

For LGBTQ+ individuals and couples, revocable trusts offer several key advantages:

• Privacy – Trust administration is not part of the public record
• Continuity – A successor trustee can seamlessly manage assets if you become incapacitated
• Protection Against Challenges – Trusts are generally more difficult to contest than wills
• Flexibility – They can be tailored to reflect modern family structures, including chosen families
• In many ways, revocable trusts can replicate or even improve upon the legal benefits traditionally associated with marriage.

Protecting Chosen Families
Historically, and still today, many LGBTQ+ individuals build strong networks of chosen family. These relationships are deeply meaningful but are not automatically recognized under the law.
Comprehensive estate planning ensures that:

• Partners are financially protected
• Chosen family members can inherit assets
• Trusted individuals are empowered to make healthcare and financial decisions
• Personal identity is respected both during life and after death

Moving Forward with Confidence
At a time when the legal landscape remains uncertain, estate planning provides clarity, control, and peace of mind. By proactively putting the right documents in place, LGBTQ+ individuals can safeguard their relationships and ensure their wishes are honored, no matter what the future holds.

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If you have questions about estate planning or would like to put a plan in place, consulting with experienced counsel can help you navigate your options and create a strategy tailored to your needs.

This article is for informational purposes only and does not constitute legal advice. Readers should consult with an attorney regarding their circumstances.