As a lesbian woman, I have witnessed many legislative changes in my adult life, each of which has cost me a great deal of stress. That stress is well-founded since, prior to 2013, nearly every law change negatively impacted gays & lesbians, as taxpayers, as well as people. I write those two adjectives in that order since I am appalled that despite LGBTQ people paying our fair share of taxes (and some of us, far more than our share, as we don’t have kids that matriculate in the elementary and secondary schools systems on which we are otherwise taxed as homeowners), we have NOT enjoyed ‘fair’ representation. For example, until marriage for LGBTQ people was legalized in 2013, all of our ‘unused’ Social Security was surrendered back to the SS coffers at our deaths, unlike heterosexual couples whose surviving partner(s) received a share of the decedent’s Social Security payments for the rest of their lives! Additionally, LGBTQ taxpayers—even COUPLED LGBTQ folks–were forced into filing as Single Taxpayer, which carried far HIGHER effective tax rates on earned and unearned income, unlike heterosexual couples who could elect Married Filing Jointly, Married Filing Separately, and/or Head of Household—each of which levied far LOWER effective tax rates. And there are FAR more examples of historic legislatively dictated financial inequality for LGBTQers, which I’ll cover in future blogs.
The matter of how LGBTQers have been treated as people is certainly not to be underrated, insomuch as far too many have been abused, bullied, murdered and otherwise disenfranchised in families, schools, and society at large, and that, too, will be covered in future blogs.
For today, however, as I attend the National Lesbian Gay Chamber of Commerce annual conference, I will focus upon the area of Estate Planning for Non-Traditional Taxpayers. Regardless of your wishes regarding what will happen with your assets, your children and/or your business if applicable, it is imperative that you clearly spell these out in writing!
Nothing is more poignant a memory then the historic and horrific Sharon Kowalski case in which Sharon was involved in a tragically serious car accident rendering her completely disabled: https://www.google.com/search?q=sharon%20kowalski%20and%20karen%20thompson
Her family of birth exercised their legal right as ‘next-of-kin’ in the absence of any legal documentation deeming Karen as Sharon’s Medical Power of Attorney and prevented her long-term life partner, Karen Thompson, from seeing her. Her birth family largely ignored Sharon and loosely organized her treatment such that her recovery was aborted with irreparable lifelong ramifications.
I can’t imagine that type of stress if I was healthy; I can only imagine how devastating Sharon’s life was, trapped in the hospital, not seeing Karen, despite Karen’s valiant efforts to the contrary. After years of legal battles and the expenditure of GROUPS of zeros, Karen won the right to see Sharon and effect caregiving instructions.
As a Grief Coach, and a person who has been present for so many dying folks, there’s nothing like death to bring out the worst biases, along with the ensuing horrific behaviors from family members. Horror stories include the surviving LGBTQ partner being evicted from their home, stripped of all personal belongings and/or disinherited financially.
So, aside from voting and perhaps campaigning and otherwise supporting candidates who ‘have our back’, we are basically passive in the face of such legislation. Yet HERE is where we can and must take an active role on behalf of ourselves, our partners, our families, and the charities we love.
- We must write down—preferably with the professional help of an estate planning attorney—our wishes for our end-of-life care, as well as the final distribution of our ‘assets’, stated in a will or a trust, or both, if necessary/applicable. That means drafting a Medical Power of Attorney, spelling out in excruciating detail the type(s) of care we want for ourselves while we are alive, and ultimately naming a person and a successor person to serve as your Power of Attorney therein.
- It is imperative to obtain a change of beneficiary forms for EACH of your Retirement and Annuity accounts—401(k), 403(b), IRA, Roth IRA, Simple IRA, SEP, etc.—and complete each of these accounts forms by naming your primary beneficiary AND secondary (or contingent) beneficiaries. It is VERY important to name alternate beneficiaries (preferably a younger generation, if applicable) as that opens the door to utilize a Stretch IRA feature—details on which will follow shortly.
Beneficiary forms on these Retirement accounts and Annuities supersede your will! Indeed, your will could say leave everything to my current partner, yet if the beneficiary form still lists your former partner or your parent(s), your current partner is SHIT outta luck! More painfully, she/he/they are denied the financial payment of your hard-earned assets. The PERSONAL hurt and devastation is also incalculable!
- We must draft a will or a trust, or both, in which we designate a Legal Guardian for either minor or disabled children or parents, otherwise in our care. Nothing was more painful than my sitting in the courtroom in Newark, New Jersey as a witness, to fight on behalf of the surviving partner of the 9/11 tragedy’s decedent to win custody of their minor child! (After your death is NO time for your child or parent to wonder where they will live, or who will care for them.)
- We must name a suitable Executor who will affect the instructions of our will. It is not necessary for the Executor to understand how to execute a will; they can partner with an attorney for that. It is MOST important that the Executor understands your (referred to as the decedent’s) wishes as written, and dutifully carries them out. Regardless of the emotional stress, I often recommend that your life-partner be named as your Executor, for control reasons, and ALSO because it sends a very strong signal to anyone who may have been tempted or inclined to challenge the will, insomuch as your having named such person while you legally stated you were in sound mind, may go a long way towards thwarting dissenting, disgruntled or otherwise homophobic family members.
It’s my opinion that probably north of 97% of the people in each days’ obituaries didn’t plan on being there yesterday; who the heck knows when we will die? NO one! So, please take this simple step right now, today, to protect those you love, by changing your beneficiary designations. And while I am at it, please do spend the extra cash to mail the Change of Beneficiary form via Certified, Return-Receipt mail, and retain a copy of same in your files, as it has been known to happen that the insurance company ‘never received’ your form!
So, godspeed to each of you, and stay tuned for more ways in which LGBTQ folks, and others, of course, can protect themselves, in a world otherwise rife with uncertainty.