Gallup reports that 7.6% of U.S. adults currently identify as lesbian, gay, bisexual, transgender, queer, or another sexual orientation other than heterosexual. While this figure represents a growing trend, individuals identifying as LGBTQ+ represent a minority within the U.S. population. In the past two years, state legislatures, including Ohio’s, have introduced a significant number of bills that affect LGBTQ+ rights, with over 500 bills proposed across 46 states in 2023 and 40 states in 2024.
Presidential elections often bring up specific concerns for many, especially those worried about potential impacts on daily life. Here are five practical steps LGBTQ+ families can take to help ensure your rights and plans are secure.
5 Actions LGBTQ+ Families Can Take
- Execute a Last Will and Testament
- Designate Powers of Attorney
- Secure Parental Rights
- Fortify Your Estate Plan
- Formalize Your Marriage
EXECUTE A LAST WILL AND TESTAMENT
Executing a last will and testament has 2 key benefits: control and clarity. It allows you to decide, in a legally-enforceable way, who gets what and who is in charge of implementing these wishes. You also have the opportunity to declare who should be the guardian of your minor child should you die while your child is a minor. Without a will, the State of Ohio will make these decisions, which may not align with your preferences. Second, executing a last will and testament avoids ambiguity which often leads to contention and conflict among surviving friends and family members. A properly drafted last will and testament breaks through the ambiguity to preserve your wishes and to best mitigate conflict. You can execute a last will and testament so long as you have attained the age of 18, are of sound mind and memory, and not under restraint. Your will is valid under Ohio law if it is in writing and signed by you in the presence of at least two competent witnesses.
DESIGNATE POWERS OF ATTORNEY
A power of attorney (POA) is a document that appoints someone to manage your personal or financial matters on your behalf; preventing the need for court-appointed guardianship. Ohio offers two main types of powers of attorney: (1) a medical power of attorney; and (2) a financial power of attorney. First, a medical power of attorney, or sometimes referred to as a health care power of attorney, allows you to hand-pick someone you trust to take charge of care and decisions for you in the event you are unable to make or communicate decisions regarding your own care. Second, a financial power of attorney, or sometimes referred to as a general durable power of attorney, allows you to hand-pick someone you trust to manage your financial affairs in the event you are unable to do so on your behalf. Failure to designate such powers of attorney may result in a probate judge assigning a representative who may not align with your preferences.
SECURE PARENTAL RIGHTS
LGBTQ+ families are often grown through methods like donor insemination, in vitro fertilization, adoption, and surrogacy. Careful attention must be paid to locking down parental rights. Strategies to fortify parental rights include: (1) Determination of Parentage; and (2) and adoption decrees. First, Determination of Parentage is a legal procedure through Juvenile Court to establish a parent-child relationship between a non-biological or non-adoptive parent and the child. A successful determination results in the child’s birth certificate being modified to add the new parent and to create legal rights and responsibilities for the parent. Second, Adoption decrees provide clear proof of parentage and are enforceable across states. In Ohio, same-sex married couples may obtain joint parental rights through the step-parent adoption process.
FORTIFY YOUR ESTATE PLAN
Fortifying your estate plan involves (1) adding language of intent in your documents and (2) incorporating additional decisions beyond a will and power of attorney. First, including specific language of intent an safeguard your spouse’s rights if federal protections change, as Ohio law may nullify marriage-based rights in wills or power of attorney documents if the marriage is terminated. Ohio law automatically revokes any beneficial interest or appointment as executor or guardian of a spouse in a last will and testament in the event the marriage is terminated. Specifying that your spouse should retain rights even if state laws change can protect their role.
Second, fortifying your estate plan includes incorporating extra decisions into your plan beyond just a last will and testament and powers of attorney. These additional decisions are incorporated by the use of additional documents in your estate plan, such as a HIPAA Authorization, Anatomical Gift Designation, Living Will, and an Authorization and Instructions Regarding Final Disposition. A HIPAA Authorization allows your partner to receive medical information in emergencies; an Anatomical Gift Designation records organ donation wishes; a Living Will clarifies end-of-life preferences, reducing potential family conflict; and an Authorization for Final Disposition designates who will handle funeral and burial arrangements. Such an appointment can ensure your partner or spouse is the one making these decisions and not otherwise boxed out by family who may not recognize your relationship.
FORMILIZE YOUR MARRIAGE
Although the Obergefell decision in 2015 protects same-sex marriage, recent court cases have raised questions about long-term security. Couples wishing to formalize their marriage and secure associated legal benefits may want to consider doing so proactively.
