Estate Planning for LGBTQ Couples in California: What Legal Documents Matter Most?

Estate planning allows California’s LGBTQ couples to ensure their wishes are respected and their partners are protected. Even though this state has some of the most progressive laws regarding marriage equality and discrimination, California’s default rules for those without an estate plan presume a very old-fashioned traditional family structure. If you are estranged from biological relatives or have a very close chosen family, these rules are likely to be the exact opposite of what you want to happen.

A comprehensive estate plan allows you to define your beneficiaries on your own terms. Estate planning also allows you to nominate guardians to take care of your minor children. By properly utilizing wills, trusts, healthcare directives, and powers of attorney, you gain peace of mind and protect those you love.

Why do LGBTQ Couples Need a Will in California?

If you pass away without a will or trust in California, this is called “dying intestate.” The state will determine who gets your assets using a very rigid set of rules that prioritize your closest legally recognized living relatives.

These rigid rules often go directly against what LGBTQ couples want. For example, a surviving unmarried partner receives absolutely nothing under California’s intestacy laws. As a result, likely, your home, savings, personal belongings, and other assets will go to your biological relatives. This is true even if you are estranged from them and haven’t spoken for years.

To avoid California’s default intestacy rules, you must proactively execute valid estate planning documents. The assets most at risk under intestacy laws include:

• Real estate held solely in one partner’s name.
• Bank and investment accounts without designated beneficiaries.
• Personal items, family heirlooms, and digital assets.
• Business ownership interests and intellectual property.

How Does a Revocable Living Trust Protect LGBTQ Families?

A revocable living trust protects LGBTQ families by avoiding the California probate court process. The process is incredibly costly, can take years, and is completely open to the public. Meanwhile, a trust can pass your assets directly to your chosen beneficiaries immediately upon your death. A trust does not need court approval and can transfer assets confidentially. Furthermore, because it is a revocable living trust, you retain full control over the assets during your lifetime.

What Documents Protect Medical Decision-Making for LGBTQ Partners?

Medical decision-making for LGBTQ partners is protected through an Advance Health Care Directive and a HIPAA Authorization form. These documents legally authorize your partner to make medical choices for you if you become unconscious, incapacitated, or otherwise unable to speak for yourself.

In a medical crisis, California hospitals must follow the instructions of your legally designated healthcare agent. If you do not have an Advance Health Care Directive, doctors will look to biological family members or legal spouses to make life-and-death decisions. For unmarried couples, this can mean your partner is barred from your hospital room while estranged relatives take control of your care.

To fully protect your autonomy and your partner’s right to be by your side, your estate plan should include the following healthcare documents:

• Advance health care directives allow you to appoint your partner as your healthcare agent and outline your wishes for life support and medical treatments.
• HIPAA authorization permits medical professionals to share your confidential medical records and updates with your partner or any other parties that you choose.
• Nomination of conservator gives you the power to choose who you want to make financial and medical decisions if you become incapacitated.

Do Married LGBTQ Couples Still Need an Estate Plan in California?

Yes, married LGBTQ couples still need an estate plan in California because marriage alone does not prevent your estate from going through the expensive probate process, nor does it automatically grant full financial control during a medical incapacity. Marriage provides a baseline of legal protections, but it is not a complete estate plan.

If a married partner becomes incapacitated due to an accident or illness, the other spouse cannot automatically sell a jointly owned home or access accounts held solely in the sick partner’s name without a Durable Power of Attorney. Furthermore, when the surviving spouse eventually passes away, the entire estate could end up in probate court, costing your loved ones tens of thousands of dollars in statutory court fees. Consulting with seasoned Beverly Hills estate planning attorneys ensures that your marital assets are fully maximized, protected from creditors, and seamlessly transferred without state interference.

FAQs about California LGBTQ Estate Planning

What is the difference between a will and a living trust in California?

A will states who gets your assets after you die and lists nominees for guardianship of your minor children. However, before a will can take effect, it must go through the California probate court process.

A living trust transfers your assets into a trust during your lifetime. When you pass away, those assets are then transferred to your chosen beneficiaries. A living trust does not require court approval and is administered privately by a chosen trustee.

Can an unmarried partner inherit my assets if I do not have a will?

No, they cannot. Under California law, an unmarried partner has absolutely no legal rights to any assets that you own solely in your name. Instead, the state will distribute your property to your closest biological and legal relatives, such as your spouse, children, parents, and siblings.

Do I need an estate plan if I don’t own a home?

Yes. Estate planning is about much more than houses. Estate planning helps you designate who inherits your financial assets, retirement funds, real estate, and digital assets.

Estate planning is also about much more than distributing assets. For example, a thorough estate plan includes a healthcare directive. This allows you to name who you want to make crucial healthcare decisions for you if you are incapacitated.

How can I prevent unsupportive biological family members from contesting my estate plan?

The most effective way to prevent someone from contesting your estate plan is to establish a revocable living trust and include clear “no-contest” clauses. These clauses heavily restrict the grounds for contesting your estate plan. Additionally, they can also penalize those who file legal challenges by ensuring they receive nothing.

Kushner Legal Helps LGBTQ Couples Protect Each Other and Their Chosen Family

At Kushner Legal, our West Hollywood and Beverly Hills LGBTQ estate planning attorneys help ensure that LGBTQ couples’ final wishes and desires are respected. With our help, you can protect yourself and your partner by ensuring you control who receives your assets and make important decisions on your behalf.

Contact our legal team today to get started.