Why own as joint tenants rather than just leaving the house to your partner in your will?  Even if you die with a will, your relatives (“legal heirs”) may go to court to challenge the will.  This has happened all too often to LGBT people.  Ownership in joint tenancy means that the surviving joint tenant immediately becomes the owner of the home when you die.  This is called a Right of Survivorship.

The main advantage of joint tenancy is the automatic transfer of ownership when one of the joint tenants dies.  A home in joint tenancy does not have to go through the probate estate of the person who died.

A word of caution:  property held in joint tenancy can be affected by several types of taxes, including federal and state income taxes, estate taxes and gift taxes.  Tax laws change often.  Carefully consider tax laws when deciding how to title your home or other property.

As always, consult an attorney or financial planner.

For LGBT persons, a will is not optional.   Dying without a will guarantees that your property will be automatically distributed to your legal heirs, as defined by the law of Illinois, if you’re an Illinois resident, or your state.  The Illinois statute is here.

Who are legal heirs?

• They are your family of origin – children, parents, brothers and sisters.  If you have none, then your closest relatives are your legal heirs.
• A same-sex partner or spouse is not a legal heir (with the exception of a few states where the marriage, civil union or domestic partnership laws recognize the right of a same-sex partner to inherit.)
• No matter how long you’ve been with your partner, no matter what your relationship is with your family of origin – if you die without a will, your property will go to your legal heirs as defined by the law of the state in which you live.

A last will and testament can accomplish several important things, including:

• naming your partner or a close friend as guardian of your minor children;
• spelling out your burial wishes;
• clarifying your intention to provide for your same-sex partner or close friend or a charity;
• naming your partner as executor of your estate.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will.

It is far less expensive, financially and emotionally, to plan now to make sure that your property goes to the people or charities you choose.  Remember, every state has different legal rules for creating a valid will.  Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.   Have an experienced, knowledgeable attorney who is familiar with the laws in your state and the issues faced by LGBT persons help you draft your will and life planning documents.

It’s easy to forget whom we’ve named as beneficiary of life insurance policies, especially when it’s been years since we took out the policy.  Who is named on your policies?   Be sure that it’s the person or persons you want to provide for if you die unexpectedly.  If no one is named, the proceeds will likely go into your estate and be distributed through the probate process.  This result may or may not be what you wanted.

The same is true for retirement benefits.  Check your plans and accounts to ensure that your beneficiaries are who you want them to be.

Unfortunately, there are many sources of retirement income that are structured to provide benefits based on federally-recognized marriages.  That is, no benefits are available to surviving unmarried partners or persons other than a federally-recognized spouse.  In these cases, life insurance or an annuity may be the best way to replace the safety net that retirement, survivor or accidental death benefits provide.