Wade Horowitz LaPointe LLC was one of the pioneers in estate planning for the gay, lesbian, bisexual and transgender community.  In addition, each attorney at Wade Horowitz LaPointe has been active personally in the community for many years.  One highlight of this work was Attorney Ellen Wade’s critical role as a plaintiff in ground-breaking litigation in Massachusetts.  She was one of the plaintiffs in the right to marry lawsuit as well as in earlier litigation which forged the right for second parent adoption in Massachusetts, enabling the second parent in a same-sex couple to adopt his or her partner’s biological or adopted child. 

 

Professionally, after developing experience working with their own clients, Attorneys Horowitz and Wade founded the first legal practice section of the Massachusetts Lesbian & Gay Bar Association for attorneys seeking to specialize in the area of LGBT legal planning.  They have also worked closely with groups planning for the aging population in the LGBT community and are regular speakers in programs for the legal education of other attorneys and programs to inform the LGBT community directly.

 

WADE HOROWITZ LAPOINTE LLC – QUALITY, PERSONALIZED LEGAL SERVICES TO THE LGBT COMMUNITY

 

The attorney-client relationship in the context of estate planning deals with personal and private matters. It is important that you feel comfortable enough to speak honestly to your attorney in an environment where you know you will be welcome.  Gay, lesbian, bi or trans persons looking for legal professionals who are experienced in providing for their unique needs will find a supportive and comfortable environment providing individually tailored, quality legal services.

 

Despite the many legal advances that have been made by the gay, lesbian, bi and trans communities, important differences continue to exist that make the estate planning needs of this community unique.  Some of these changes are based on legal realities and some on the nature of the community.  Examples of some issues that are raised include:

·      FEDERAL REFUSAL TO RECOGNIZE SAME-SEX MARRIAGES.

o       NUMEROUS LAWS AFFECTED – The federal government continues to refuse to recognize same-sex marriages. Since there are over 1,000 federal laws affected by marital status, this denial of recognition can have significant impacts on the lives of the couples affected.  The laws involved include such important matters as the availability of social security and Medicaid benefits and special tax advantages.

o       ESTATE TAX IMPLICATIONS – Heterosexual couples can leave their estates to their surviving spouses without paying a federal estate tax.  Same-sex couples, on the other hand may have to pay estate taxes at rates as high as 45%, drastically reducing the money that is left to care for their spouse and children.  While planning cannot eliminate the effect of these discriminatory laws, proper planning can help reduce the overall impact on a family.  Although the Commonwealth of Massachusetts does afford protection to same-sex couples for the state estate tax, maximizing the benefit of this protection may require properly drafted documents.

o       TAXES IMPACTING DAILY LIFE – Since same-sex partners or spouses are considered legal strangers under federal law, transactions common between members of a couple may have resounding legal implications. While heterosexual married couples can transfer assets between them without any tax impact, similar transfers to a partner or same-sex spouse can have significant tax ramifications.  For example, adding your partner’s name to the deed on property you purchased may have gift tax implications.
 

·        PLANNING WHEN YOU HAVE NO CHILDREN

o       ABSENCE OF YOUNGER PEOPLE TO ACT AS CAREGIVERS & FIDUCIARIES – Many people who have children name their children to act as their health care agents and/or as the people to manage their affairs if they become unable to do so themselves.  If you do not have children, filling these critical roles becomes more challenging, particularly if your community of close friends is aging with you.  The planning also becomes more important.  If these needs are left unaddressed, the people who will manage your medical and financial affairs will be chosen by the court and may not be the people you would choose. Your estate will also have to bear the cost of the need for court involvement and possibly the cost of a professional representative. 

o       CHOOSING BENEFICIARIES FOR YOUR ESTATE – The typical heterosexual married couple usually has a shared common intention for their estate.  Both the father and mother want to provide for their children.  If you do not have children, the ultimate choice of your beneficiaries requires more planning and consideration for several reasons.  For example, unlike the couple with common children, you and your partner/spouse may have very different choices of people or charities you wish to benefit after you are both deceased.  If that is the case and you leave all of your assets to your partner or spouse, that property is likely to go to your partner/spouse’s, friends or chosen charities after your partner or spouse dies, thus disinheriting the family, friends or charities you would have named to receive your property.  In addition, the law naturally favors your biological family.  If you have a spouse and children, the law will assume you wish your estate to go to them.  If you die unmarried and without children, your estate will automatically go to your parents, siblings or other next of kin unless you have provided otherwise.  This may not be the outcome you want.  If you have an unmarried partner or friends, favorite charities or even more-favored family, you can provide for these people or charities by preparing your Will or other estate documents.
 

·        THE IMPACT OF COURT INVOLVEMENT  –

o       LACK OF UNDERSTANDING OF THE COMMUNITY:  Even in Massachusetts a court is likely to assume traditional approaches are appropriate for handling estates, even those involving gay, lesbian, bi or trans people.  There is a general tendency to prefer the biological family to other people who are “merely friends”.  There may be a lack of consideration of issues that may be critical to you.  For example, the court may not consider it appropriate to expend your funds to ensure that you can remain at home with your partner, preferring instead to preserve your estate for our nieces or nephews. 

o       OTHER JURISDICTIONS: Other states and countries are even less friendly to GLBT issues and values.  Carefully drafted documents can help reduce the ability of unfriendly courts and judges to implement plans that are not what you would have chosen for yourself.
 

      TRANSGENDER ISSUES

o       DOCUMENTS ESSENTIAL – The likelihood of alienation from biological family is even greater within the trans community.  Having thoughtful and understanding people handling your affairs is essential.  Documents need to be drafted that are sensitive to the legal and medical status of the transition and the requirement that gender identity be respected.