LGBTQIA+ Community: How to prepare for estate, health, and financial planning during uncertain legal times

By: Attorney Nicole Hetz & Attorney Sunny Kakwani

In the wake of the recent supreme court decision to overturn Roe v. Wade, anxiety over the uncertainty of other actions they may take, has been prominent. Among the queer community, there is concern whether other federal laws will soon be overturned. While we are depressed about writing a blog post like this, we want you to feel informed on how you can proactively protect you and your family. Although as a law firm we specialize in business law, intellectual property law, and nonprofits, we feel that the best way to support our queer community is to provide information about how to be prepared for the worst case scenario. If gay marriage is declared illegal, there are a lot of rights that would be affected. 

Understanding how your assets are titled, who has authority to make healthcare and financial decisions on your behalf, and what happens to your business is essential. Estate planning involves determining how an individual's assets will be preserved, managed, and distributed after death. It also takes into account the management of an individual's properties and financial obligations in the event that they become incapacitated.

In a landmark decision in 2015, the United States Supreme Court ruled that all states must recognize same-sex marriages legally performed in other states. (Obergefell v. Hodges, 576 U.S. 644 (2015).) Due to the new Supreme Court’s holding and reasoning in their opinion in Dobbs v. Jackson Women’s Health, this right too, may be in danger. Here is a non-exhaustive list of potential effects a decision to overturn same-sex marriage rights could have: 

Benefits affected

  • health, dental, and vision insurance

  • sick and bereavement leave

  • accident and life insurance beneficiaries

  • death benefits

  • parental leave (for a child you co-parent)

  • housing rights and tuition reduction (at universities)

  • adoption/parental rights

Tax implications

  • filing status

  • personal and dependency exemptions

  • standard deductions

  • employee benefits

  • IRA contributions

  • earned income tax credit

  • child tax credit

Divorce proceedings

  • fault or no-fault divorce

  • property division

  • child custody and child support

  • spousal support

Property ownership

  • “tenancy in common” agreement

  • loan/mortgage

A healthcare agent is a person whom you are trusting to make medical decisions on your behalf if you can't make them for yourself. Choosing your agent is an important decision, and you should think carefully about who you want to assume this responsibility. This person may one day be deciding whether or not life support measures will be in your best interests or determining exactly how your personal and religious values would impact other treatments. In the most basic form, a health care power of attorney merely says, "I want this person to make decisions about my health care if I am unable to do so.”

A legal document that appoints a healthcare agent is sometimes called an “advance directive.”  The advance directive is a document in which you designate someone to be your representative, or agent, in the event you are unable to make or communicate decisions about all aspects of your health care.

In Oregon the standard Advanced Directive form allows you to select a back-up (helpful if you and your partner are injured in the same accident). You can also choose the level of detail to provide (e.g. do you want to be on a feeding tube if needed, is there a certain amount of time you want this to be limited to? A month? A year?)

Your doctor can keep a copy on file. You should also keep additional copies on hand. 

Resources

Planning Information Form:
https://drive.google.com/file/d/1vzAnzDAIERh-fh15btLa_NSA2wWmQISS/view?usp=sharing

Oregon Links:

https://www.asyourcounsel.com/estate-planning

https://www.asyourcounsel.com/insight/living-trusts-wills-and-power-of-attorney

Advance Directive Forms from Oregon Health Authority: https://www.oregon.gov/oha/PH/ABOUT/Pages/ADAC-Forms.aspx 

Washington Links:

Washington State Department of Social and Health Services:
https://www.dshs.wa.gov/altsa/home-and-community-services/legal-planning 

California Links: 

Advance Health Care Directive Registry from California Secretary of State:
https://www.sos.ca.gov/registries/advance-health-care-directive-registry 

Links for All 50 States:

https://www.americanbar.org/groups/law_aging/resources/health_care_decision_making/consumer_s_toolkit_for_health_care_advance_planning/

Steps You Can Take to Proactively Protect Your Family

  • Prepare a springing power of attorney

  • Oregon Advance Directive / Health care power of attorney

  • Will/Trust - beneficiaries

  • Check your 401k and Roth IRA beneficiaries

  • Check your bank account’s beneficiaries (this is free to set up and will take 10 minutes to an hour depending on your bank)

  • Check how your home is titled

Get In Touch with Us

We hope this blog has useful information for you and those you love.  Please share with others who may need a starting point.  Some of the important adulting paperwork can be navigated by you fairly easily. You may also have questions or want to speak to an attorney about your specific situation.  Please get in touch with us if you would like to talk more about how you can plan for this.

https://rationalunicornlegalservices.com/contact

https://www.asyourcounsel.com/estate-planning

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