Not so long ago when gay marriage was yet to be recognized by the federal government, it was very difficult for LGBT married couples to navigate Social Security Benefits, sue for loss of consortium, or rely on marital gift tax deductions when one spouse died, according to the American Bar Association. While some of these issues have gone away because same sex marriage has been legalized both federally (in 2015) and here in Illinois (in 2013 according to the Chicago Tribune), there are still complications for LGBT couples.
Child Guardian Issues
In a traditional marriage, if the mother or father dies, custody of any minor biological children that the couple has had together automatically goes to the surviving parent. In transgender marriages, it may not be so simple. For instance, if a minor child is the biological child of one parent but not the other, and the other parent has not legally adopted the child, custody becomes more complicated. Similarly, if one parent adopted a child and the other never formally adopted that child, there can be complications in the event of a death. These issues are some of those faced by non-transgender parents who have also adopted, or have children from a previous marriage or relationship.
Being Careful With Terminology, Birth Certificates, and Power of Attorney
When creating a will and testament, all terminology must be made clear and fool proof. Terms such as mother and father need to be consistent, and if you have a child that is transgender, terms such as son and daughter need to be also.
In some cases, the term “child” should be used instead. Additionally, all birth certificates and legal identification need to be left easily accessible for the executor of your will.
Another issue that sometimes comes up is that of a bigoted family member who wishes to ignore the surviving spouse may attempt to take financial and other legal matters into his or her own hands. A durable power of attorney, which is a legal document that gives another party the authority to make decisions on your behalf, can solve this by clearly laying out your wishes, which must be adhered to.
A DuPage County Estate Planning Attorney is Here to Help
Most people assume that estate planning for one person is generally the same for the next, and gender identity and sexual orientation have nothing to do with it. However, there are a few scenarios where being transgender may affect your estate, and the proper steps need to be taken by your attorney to ensure that all of the necessary documentation is in place.
A comprehensive estate plan covers everything from power of attorney and advance medical directives, to property allocation and child custody/guardianship. You need a dedicated DuPage County estate planning attorney with LGBT estate planning experience to help ensure that your estate plan fully covers all of your needs and wishes. Contact the attorneys of Momkus McCluskey Roberts LLC today.