The Supreme Court in Obergefell v. Hodges recognized that LGBTQ+ couples have the right to marry, and despite legal challenges since Obergefell, marriage equality remains the law of the land. Setting aside the possibility that the Supreme Court may overturn the Obergefell ruling one day (which, let’s be honest, it could), does marriage solve the estate planning concerns of LGBTQ+ couples? You’re married. So, your spouse is completely protected now, right? Unfortunately, it’s not that simple in Louisiana.
Marriage equality is an important milestone for LGBTQ+ couples. As a married couple, you now have certain legal protections under Louisiana law – community property rules, usufruct over community property, the capacity to make medical decisions for your spouse. Those are significant legal protections. But marriage doesn’t solve all estate planning concerns.
When it comes to estate planning, the legal protections offered to Louisiana married couples fall short in several ways.
Blood relatives are favored, so your spouse may not inherit all your property. Many people assume that when they die, their spouse automatically inherits everything they own, regardless of whether they have a Will. But in Louisiana, that is simply not the case. Louisiana law favors blood relatives over other people, even your spouse. If you die without a Will or trust and you have children (biological or adopted, including children from a prior relationship), then your children will inherit your separate property, not your spouse. Regarding your one-half of any community property, your spouse will receive the right to use it for life (called a usufruct), but your children will inherit the ownership of it. If you don’t have any children, then your siblings and your parents will inherit your separate property before your spouse. So, why does this matter in real life? Your children from a prior relationship could end up owning your home with your spouse. Or your parents could end up owning all your separate property despite the fact that you’ve been estranged from them for years. A Will or a trust, on the other hand, allows you to decide who inherits from you rather than leaving it to Louisiana’s default laws.
When your healthcare wishes are in writing, your family members don't have to guess what you want, which can reduce the likelihood of family conflict. Your spouse is on the list of people who can make medical decisions for you, high on that list. But that doesn’t mean that disputes don’t arise. Your spouse and your parents or siblings may disagree about who can make medical decisions for you or about what kind of treatment you’d want, creating more stress in already stressful situations. And medical facilities have been known to question who has the authority to make medical decisions when sex couples are involved. The easiest way to avoid this problem is to have powers of attorney and a living will. These legal documents remove all doubt about who you want to make decisions for you and what types of treatment you do and don’t want.
Marriage doesn’t automatically give your spouse oversight of your finances. If you have financial accounts that are only in your name and you become incapacitated, your spouse won’t automatically have the legal right to oversee those separate financial accounts. Separate financial accounts can only be accessed by someone who has been named in a durable financial power of attorney.
Beneficiary designations must be kept up to date. If you have life insurance or retirement accounts, these can pass to whoever you have named as a beneficiary. But you still need to keep those beneficiary designations up to date, and often, people forget that their beneficiary designations include a parent or an ex (or no one at all). If you don’t update those designations, then your spouse won’t inherit the life insurance or retirement account proceeds – whoever you have named will inherit. And if you don’t have anyone named as a beneficiary, your family will need to go to the court process known as succession to transfer those accounts.
A Louisiana Will, a trust when appropriate, durable financial and medical powers of attorney, a living will, current beneficiary designations – when thoughtfully considered based upon your unique circumstances, these are all designed to work together to protect your family. And importantly, a quality estate plan continues to protect you and your loved ones whether or not the Supreme Court ever revisits Obergefell and marriage equality. For Louisiana LGBTQ+ couples, that’s just smart planning.
At Aspen Estate Planning, we help LGBTQ+ couples design estate plans that protect their loved ones under Louisiana law. Schedule a consultation, and let's chat. We’ll recommend which plan best fits your family’s needs, and we'll work with you to make planning as easy and convenient as possible because protecting your family shouldn't be a difficult process.
We’re married with no kids. Does my spouse automatically inherit everything?
Possibly, but not always — it depends on the kind of property (community or separate), your family, and whether you have a Will. The best way to guarantee your spouse inherits everything you own, if that’s what you want, is to put those wishes in writing.
If I’m in the hospital, won’t my spouse get to make medical decisions for me?
Again, possibly. Your spouse is on the list of people with authority to make medical decisions for you, but if your parents disagree with those decisions, they may challenge that authority. And despite marriage equality, some medical facilities (particularly religious-affiliated ones) view same-sex couples differently. That’s an unfortunate fact. But a medical power of attorney gives you the legal authority to make medical decisions for your spouse to the exclusion of everyone else.
Can my spouse use my separate bank account to pay our bills while I’m incapacitated?
The short answer is no, not without a durable financial power of attorney. While a spouse has some authority over medical decisions, regardless of whether you have a power of attorney, finances aren’t the same. The only way a spouse can access a separate bank account in your name only is via a durable financial power of attorney.
I want my spouse to inherit my retirement account. Does that happen automatically?
No. Retirement accounts and life insurance are two types of assets that pass on to the individuals you designate as beneficiaries. If you haven’t designated your spouse as the beneficiary of your retirement accounts (or life insurance), then they won’t automatically inherit those assets, and depending on whether you have someone else designated as beneficiary, they may not inherit it at all.
This article is general information about Louisiana law, not legal advice, and reading it doesn’t create an attorney-client relationship. Estate planning laws are complex and specific to individual circumstances. For guidance on your specific situation, please speak with a Louisiana estate planning attorney.
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