In honor of pride month, our firm is discussing the importance of estate planning for LGBTQIA+ individuals and families. You may be surprised to learn that every Florida resident has an estate plan in place right now—yes—even those who do not have a will, power of attorney, or health care advance directives; Florida has provided you with a default estate plan.
Unfortunately for many LGBTQIA+ Floridians, the “default” estate plan under Florida law may not be what they want or need. For many individuals, their loved ones or chosen family members are different from who the law defines as family because the law does not always recognize or prioritize the ones we trust the most. For example, when a Florida resident dies owning assets in their individual name and without a will in place, their assets pass according to Florida’s intestacy laws, regardless of what their wishes may be. The intestacy laws lay out an order of priority of who will inherit your property (spouse, children, parents, siblings, etc.). Similarly, Florida residents who become incapacitated may be subject either to a court-monitored guardianship proceeding or Florida’s laws appointing a health care proxy. Additionally, absent written directions to the contrary, guardians for minor children will be selected by the court, and may not be the individuals a person would otherwise choose to care for their minor children.
For some LGBTQIA+ individuals and families, Florida’s default laws designating heirs and fiduciaries may not reflect their wishes. Will the person entitled to serve as health care proxy respect a transgender or gender non-conforming individual’s pronouns or desires for gender affirming care? How can you guarantee your partner (if unmarried) or other chosen family will be entitled to inherit your property, receive certain private health care information, have priority for appointment as guardian of your minor children, or have priority to dispose of your remains after death?
Fortunately, Florida law provides avenues for individuals and families to design their own estate plan – but action is required. As part of any well-designed estate plan, a Florida resident should consider executing a durable power of attorney, designation of health care surrogate, and living will declaration:
- A durable power of attorney allows an individual to designate one or more agents to manage property and make financial decisions on their behalf. It is effective immediately upon execution.
- A designation of health care surrogate operates to designate one or more surrogates to make health care decisions on your behalf.
- A living will declaration makes known your wishes for certain end-of-life decisions.
Together, these three documents will reduce the need or likelihood of a court-monitored guardianship in the event a person becomes incapacitated.
Florida residents should also consider executing a last will and testament which distributes devises their individually owned assets at death and designates who will serve as the personal representative of their estate after death. Some individuals should also consider creating a revocable trust for the management and disposition of non-retirement assets, second homes, or out-of-state property. A will or revocable trust may be customized to meet various goals, whether planning for minor children, spendthrift family members, minimizing estate taxes, or ensuring an unmarried partner or other chose family inherits property that they would otherwise not be entitled to inherit under Florida’s intestacy statutes. Even with a will or revocable trust in place, it is important that all beneficiary designations, such as for retirement accounts and life insurance, are updated and coordinate with the will and trust.
Lastly, a well-designed estate plan will also consider whether an individual should execute a HIPAA Authorization form designating certain individuals who may receive their private health information, execute written instructions designating an individual authorized to make funeral or cremation decisions, and designate one or more guardians for minor children.
The rights to dispose of your property how you wish and manage your finances and personal health care according to your wishes are important rights in the state of Florida., We believe it is vital for LGBTQIA+ individuals and families to understand how they may use the avenues available under Florida law to design an estate plan that aligns with their wishes and protects their loved ones. If you or your family wish to discuss how you can design an estate plan that meets your unique needs and effectuates your wishes, our firm welcomes you, and we would look forward to the opportunity to work with you.
We wish everyone a wonderful and safe pride month full of joy and celebration!
