Estate planning is a crucial step for all families, but it is particularly essential for LGBTQ families with children. At a time when LGBTQ rights are under attack, it is especially critical for people in the LGBTQ community to work with knowledgeable attorneys who understand the unique challenges faced by this community. At Kushner Legal Corporation, we are proud to serve all members of the LGBTQ community and act as strong advocates for equal rights.

While California law has made significant strides in recognizing and protecting LGBTQ parents, estate planning ensures that your wishes regarding guardianship, inheritance, and medical decisions are legally binding and upheld in court. Without a proper estate plan, your family could face unnecessary legal hurdles that may jeopardize your children’s well-being and security. This blog explores the unique considerations for LGBTQ families in estate planning, referencing relevant sections of the California Family Code and the California Probate Code.

Understanding Parental Rights in California

Under California Family Code Section 7611, a person is presumed to be a parent if they have a legal relationship with the child, such as through marriage, domestic partnership, or adoption. However, LGBTQ parents who are not biologically related to their children must take additional legal steps to solidify their parental rights. This often includes second-parent adoption or obtaining a court judgment of parentage to prevent disputes over custody or inheritance.

Additionally, under California Family Code Section 9000, stepparent and second-parent adoption allow a non-biological parent in a same-sex couple to gain full legal rights over their child. Without this, an unmarried non-biological parent may not automatically have the same rights as a legal parent, which could create complications in the event of the biological parent’s passing.

Estate Planning Considerations for LGBTQ Families

1. Establishing Guardianship for Minor Children

   If something happens to both parents, a court will determine who will care for their minor children. To ensure that your children are raised by someone you trust, you should name a legal guardian in your will. Under California Probate Code Section 1500, parents have the right to nominate a guardian for their minor children. Without this, the court may appoint a guardian who may not align with your wishes or family values.

2. Wills and Trusts for Asset Distribution

   A will ensures that your assets are distributed according to your wishes. However, a revocable living trust offers additional benefits, such as avoiding probate and providing for minor children. Under California Probate Code Section 15400, a revocable living trust allows you to manage your assets while you are alive and designate beneficiaries upon your passing.

   For LGBTQ families, a trust can help protect children’s inheritance rights, especially if there are concerns about challenges from extended family members who may not recognize your family structure. It also ensures that assets go directly to your partner or spouse without unnecessary legal complications.

3. Durable Power of Attorney and Advance Healthcare Directives

   A durable power of attorney grants your partner or spouse the legal authority to manage financial and legal matters if you become incapacitated. Similarly, an advance healthcare directive allows you to designate a medical decision-maker. Under California Probate Code Sections 4600-4805, individuals have the right to make medical decisions for their partners if explicitly stated in an advance directive. Without these documents, hospitals may defer to biological family members instead of your spouse or chosen representative.

4. Protecting Non-Biological Parental Rights in Estate Planning

   Even if both parents are actively raising a child, inheritance laws may not automatically recognize a non-biological parent without proper legal documentation. Including explicit provisions in your estate plan, such as naming the non-biological parent as a beneficiary or trustee, ensures that they maintain their parental rights and financial support for their child.

Final Thoughts

Estate planning is an essential tool for protecting your family’s future, particularly for LGBTQ parents in California. By establishing a legally binding plan that includes guardianship designations, wills, trusts, and advance healthcare directives, you can provide security and stability for your children in any unforeseen circumstances. At Kushner Legal Corporation, we understand the unique challenges that LGBTQ families face and we work with our clients on an individual level to ensure that their rights are protected.

Don’t leave your family’s future to chance—start your estate planning today to safeguard your loved ones. Contact the Kusher Legal Corporation today to schedule a consultation.