Legally Reviewed By Lars Kushner | Beverly Hills Estate Planning Lawyer
Beverly Hills LGBTQ Estate Planning Attorney
Common-law marriage is a concept in some states where, if individuals meet certain requirements, such as publicly presenting themselves as married and living together for a certain number of years, the law considers the couple to have been married even if there was no formal marriage.
With extraordinarily rare exceptions, California does not recognize common law marriages. The one practical exception is when a couple established a common-law marriage in one of the few states that recognize it, had that marriage formally recognized by that state, and then moved to California. Because each state that recognizes common law marriages sets different requirements and because common law marriages are designed to be informal and low-key, this exception rarely applies.
As a result, if one partner passes away without either being formally married to the other or having a properly prepared estate plan, the surviving partner is generally entitled to absolutely nothing from the deceased’s estate. This is true even if they lived together for decades, the deceased intended for their partner to receive everything, were the loves of each other’s lives, intended to get married, but just never got around to it, etc.
When this scenario happens, the law looks for surviving biological relatives or a legal spouse to distribute the property to. As a result, everything you own could go to estranged parents or siblings, or it could go to distant relatives you have never heard of. That is why contacting Kushner Legal’s Beverly Hills LGBT estate planning attorney is so important for your loved ones to be protected.
Keeping Both Parents Involved During Incapacity or Death
Raising children together often brings LGBTQ couples closer together. However, the law tends to default to the “biological rules” if other legal arrangements have not been formally made. For example, if a gay male couple has a child together via one partner’s sperm and a donor egg, the non-donor partner does not automatically get parenting rights. To establish legal fatherhood, the non-donor would need to formally adopt the child or get a parentage judgment under California’s Uniform Parentage Act.
This setup often leads to legal results that completely defy the reality of how the family lived. For example, if the donor passes away, the non-donor may have no right to maintain custody of the child if the non-donor’s fatherhood was never formally established. Instead, custody would typically default to the biological grandparents. The non-donor parent may also be prohibited from making medical decisions for their own child or even picking them up from school.
Parents value their children more than anything else in this world. Yet, if you do not meet California’s formalities when it comes to children, you could lose your right to see your child in the blink of an eye. That is why estate planning for LGBTQ couples is so important.
Securing Legal Consistency for Transgender and Nonbinary Clients
Identity matters immensely in estate planning. For transgender and nonbinary individuals, ensuring that your legal documents match your true name and gender is a critical legal necessity.
If estate documents list a deadname or an incorrect gender marker, hostile biological family members can challenge the paperwork’s validity. We see relatives argue in probate court that the deceased person was confused or that the documents refer to someone else entirely. These disputes drag out the probate process and drain the estate of its resources.
California makes it easier to update legal gender markers under the Gender Recognition Act. However, updating your state ID is just step one. You must formally update your wills and trusts to reflect your legal name consistently.
Kushner Legal guides clients through these administrative steps so everything aligns perfectly. Additionally, we draft customized healthcare directives that explicitly state your preferences regarding gender-affirming care and how your body should be handled after death. This ensures your identity is honored exactly as you wish.
Protecting Chosen Families and Non-traditional Structures
Blood relations do not always define family. Many build strong bonds with friends, mentors, or multiple partners. These chosen family structures are entirely valid, but California law completely ignores them.
If you want to leave your assets to a close friend or a partner outside of a marriage, you have to be deliberate. The state automatically routes your money to your closest biological relatives if you do not leave specific instructions.
You also have to think about medical emergencies. If you end up on life support, the hospital will look for a spouse, an adult child, or your parents to make decisions. They will not ask your best friend or your unmarried partner for input. An Advance Healthcare Directive solves this problem. It allows you to appoint exactly who you want to communicate with doctors on your behalf. We also help clients draft HIPAA authorization forms so their chosen family members can legally receive medical updates from hospital staff without facing pushback.
Shielding Inheritances from Predators and Creditors
People with significant assets face unique challenges. High-net-worth individuals often worry about what will happen to their money after they pass it down. You might want to leave a large sum to your partner or your children, but you also want to make sure that money is not instantly wiped out by a bad investment, a lawsuit, or a future divorce.
A common request for a Beverly Hills LGBT estate planning attorney involves setting up sophisticated asset protection strategies. Instead of handing over a lump sum, we use specific trust structures to build a protective wall around that money.
- Spendthrift Trusts. This type of trust limits the beneficiary’s access to the principal funds and prevents their creditors from reaching the money.
- Discretionary Trusts. The trustee has full control over when and how the money is distributed, which keeps the funds safe if the beneficiary goes through a messy divorce or bankruptcy.
- Special Needs Trusts. If you have a partner or child who relies on government assistance, leaving them a direct inheritance could disqualify them from their benefits. This trust holds the money safely without disrupting their eligibility.
Winning Estate Disputes and Preventing Unwanted Conservatorships
Probate litigation is exhausting. It is worse when a biological family member challenges your wishes out of prejudice. Relatives absent for decades suddenly appear when money or medical decisions are involved. We regularly step in to represent beneficiaries who are facing aggressive legal attacks from estranged relatives.
One of the most concerning situations involves conservatorships. If you lose the mental capacity to manage your own finances due to a severe illness, someone has to step in. If you have not named anyone in advance, a biological family member might petition the court to become your conservator. They could gain total control over your money, your living situation, and your healthcare, potentially icing your partner out of your life completely.
You can stop this from happening by executing a Durable Power of Attorney for Finances and an Advance Healthcare Directive. In these documents, you explicitly nominate the person you want to manage your affairs. California judges generally defer to these written documents, which prevents unsupportive family members from using the conservatorship process as a weapon.
Frequently Asked Questions About California LGBTQ+ Family Law
Why do I need specific LGBTQ+ estate planning if same-sex marriage is legal?
Marriage equality absolutely changed the landscape, but it did not fix everything. Getting married gives you spousal rights, but it does not automatically resolve parentage issues if you have children through assisted reproduction. It also does not protect you from hostile biological relatives who might try to contest your will or challenge your partner’s right to administer your estate. Kushner Legal creates plans that anticipate these specific challenges and close the loopholes that standard templates leave open.
Is there a way to minimize taxes for high-net-worth same-sex couples?
Yes. California has high taxes, and the federal estate tax can take a huge bite out of your wealth if you exceed the exemption limits. We utilize tools like Irrevocable Life Insurance Trusts and specialized gifting strategies to reduce your taxable estate. While married couples use the unlimited marital deduction to transfer assets tax-free, unmarried partners must rely on complex trust structures to minimize tax liabilities when passing wealth back and forth.
How does estate planning protect my children if I am not the “legal” parent?
It bridges the gap until you can secure a formal adoption or parentage judgment. By drafting a comprehensive nomination of guardianship, the legal parent clearly tells the court that they want you to take custody if something happens to them. We also prepare medical and educational powers of attorney, so you have the immediate legal authority to take your child to the doctor or enroll them in school without waiting for a judge to permit you.
Protect Your Partner and Your Loved Ones with Kushner Legal today
Planning for the end of your life or a major medical emergency is not the most fun way to spend a weekend. We get that. But the peace of mind you gain is absolutely worth the effort. Knowing your partner is protected, your children are secure, and your identity is respected allows you to focus on simply living your life.
Do not wait for an emergency to realize your legal foundation is missing. If you want to handle your situation the right way, you need a Beverly Hills LGBT estate planning attorney who listens to your specific needs and knows the California courts inside and out.
Contact Kushner Legal online today to schedule your consultation and let us help you protect the people you love.