Legal Issues Affecting LGBTQ+ Elders
Although there are approximately 3.5–4 million LGBTQ+ individuals age 65 or older in the United States, they are often an invisible demographic and their unique needs may go unrecognized. The government, healthcare providers, and long-term care facilities continue to discriminate in service areas crucial to elders. LGBTQ+ elders are twice as likely to live by themselves compared to their heterosexual counterparts, and over four times as likely to have no children. This leaves them vulnerable with regard to caregiving. Unlike younger LGBTQ+ individuals, LGBTQ+ elders may stay in the closet in connection with home healthcare or long-term care facilities.
The Supreme Court ruling in Obergefell v. Hodges does improve some aspects of healthcare, finances, and estate planning for elderly same-sex couples. LGBTQ+ elders may also value certain other rights related to same-sex marriage (or another legal union). These can include being recognized as next of kin, the right to inherit without a will, the right to make medical decisions for a spouse, the right to control the disposition of a spouse's body, being legal next of kin, and the right to make funeral arrangements.
Financial and Retirement Issues
Historically, LGBTQ+ elders in same-sex relationships were financially disadvantaged under federal law and were unable to access Social Security and tax benefits that protected surviving spouses and lower-earning spouses. However, now that same-sex marriage is legal in all states, same-sex couples can file joint tax returns, use tax-free property transfers, and use a marital tax deduction. Also, same-sex spouses are now eligible for earned Social Security spousal benefits. This entitles them to receive a benefit equal to half of a spouse's benefit, if it is larger than their own earned Social Security benefit.
Moreover, surviving same-sex spouses can receive Social Security survivors' benefits, as can the disabled or minor children of LGBTQ+ wage earners who have died. These benefits are only available where there is a legally recognized parent-child relationship. This makes it particularly important that LGBTQ+ parents formally adopt or obtain a parentage judgment if they are not biologically related to their children.
With the legalization of same-sex marriages, many employees will be able to designate a same-sex spouse or legally recognized children as beneficiaries of their retirement benefits. Some firms have started to offer retirement benefits to a beneficiary designated by an employee, irrespective of the legal status of the relationship between employee and beneficiary. Certain pension plans permit a married retiree to take less money over the course of his or her life so that a spouse can receive income after the retiree's death. This benefit is now available to elderly people in same-sex marriages.
Property transfer has also been improved for LGBTQ+ elders that are married. Same-sex couples can now transfer property to each other without paying taxes on the transfer. This includes transfers made upon death. If a spouse in a same-sex marriage passes away, the surviving spouse can now access the same exemption from estate tax that an opposite spouse would have received.
Elders in the LGBTQ+ community who do not wish to marry but are in a serious relationship, however, will not have these financial benefits. Moreover, since Obergefell, there is a trend of employers phasing out these benefits for those in domestic partnerships.
Planning for Illness or Disability
LGBTQ+ elders, particularly those who are not married, should consult an estate attorney in case they become incapacitated and are unable to take care of bill paying and other issues. Generally, the court will appoint someone to have control over your assets if you are unable to manage your own financial affairs. This person is likely to be a biological relative unless you are married. Sometimes elderly LGBTQ+ individuals are estranged from their families and would prefer that a close friend or romantic partner make financial and medical decisions for them. You can accomplish this by creating a durable power of attorney for financial matters.
Consulting an estate attorney can also be wise for purposes of creating a trust or will. Laws of intestacy favor biological relatives. If you would prefer your property go to a partner or child to whom you are not biologically related, you will need to specify that in a legal document, and it is important to make the choice yourself in advance. You can do this with a durable power of attorney for finances that designates an agent of your choice to take care of your financial matters if you are unable to do so yourself.
Although you can choose any agent you like, you should pick someone you trust completely who also understands how to handle money. The executed durable power of attorney (or a similar form provided by the institution) should be provided to your financial institutions.
LGBTQ+ Legal Resource Center Contents