In the hit 2019 film, “Knives Out,” the lawyer of Harlan Thrombey, the 85-year-old bestselling crime novelist played by Christopher Plummer, gathers the family in Thrombey’s study after he dies for the reading of the will.
The money-hungry heirs await to see which one of them will inherit Thrombey’s mansion, money and publishing company. The lawyer states that “[Mr. Thrombey] also wrote up a statement … and he wanted that read first.” The tension builds as the family finds out that the entire estate was left to his caregiver. The family becomes irate and drama ensues.
While this makes for great cinema, most inheritances do not involve gathering the family to read the will. It is primarily done with very uneventful court proceedings. However, something that occurs in “Knives Out” that is more common in the LGBTQ+ community is leaving all or portions of an estate to non-biological family.
In a study conducted last year by the LGBTQ+ youth charity Just Like Us, it was found that LGBTQ+ adults are twice as likely as non-LGBTQ+ adults to say they are not close to immediate family members with nearly half of LGBTQ+ young adults stating they are estranged from at least one family member. While this was a study conducted with the LGBTQ+ population in the U.K., it stands to reason that the queer community in the U.S. faces similar issues when it comes to dealing with unaccepting family members.
It also stands to reason that if you do not want to continue relationships with family members that you also do not want those individuals inheriting your assets when you die. If you do not have a proper plan in place, however, that is exactly what could happen.
What is estate planning?
Simply put, estate planning is a plan of action put in place to ensure your wishes are followed in case you die or become incapacitated. This process with most people is commonly thought of as “making a will” but there is more to it than just having a will.
“Estate planning has two parts to it,” says Ed Blaisdell, an Orlando attorney who specializes in estate planning, trusts, health care directives and more. “One is the one most people are familiar with which is what happens to your assets when you die, and that involves a will or a trust, some document like that to provide directions for your assets when you die.”
Blaisdell is one half of the legal team Dyer & Blaisdell with Tom Dyer, founder of Watermark. The pair has 40 years of experience between them in estate planning law.
“The other side of estate planning is planning for something while you are living,” Blaisdell says. “Things that allow people to speak for you when you aren’t able to speak for yourself. If you are in the hospital and you’re unconscious and there must be a medical decision made, who is going to make that decision for you?”
While putting a plan in place for when you die or become incapacitated seems like something to focus on as you get older, Blaisdell says it is not necessarily something that you want to put off until you “think you are old enough.”
“My instinct is you should always have it,” he says. “Realistically though, even for a simple estate, I would say that by the time you’re 30 you should have a will, and you should have advanced directives, because even 30-year-old’s get sick and are unconscious.”
What happens if you do nothing?
“Not having a plan is a plan, it’s just not a very good one,” says Liz Moneymaker, an estate, elder and special needs lawyer with Ferrari, Butler & Moneymaker in St. Petersburg, who has been practicing law for more than 20 years. “If you don’t have a plan in place, Florida law has one for you.”
Florida’s intestate succession laws dictate how a person’s assets are distributed when they die without a will or trust. First if you are married, your assets will go to the surviving spouse. If the deceased had no spouse, their children are next in line to inherit. Legally adopted children and biological children are both eligible, but stepchildren are not. If the person had no spouse and no children, the parents are next, followed by siblings, niblings, grandparents and so on down the family line.
“Florida isn’t a state that recognizes something like common-law marriage,” Moneymaker says. “So, if you have a partner, even a long-term partner, if you don’t have documentation those individuals are strangers in the eyes of the law.”
That goes for your chosen family as well. Relationships within the LGBTQ+ community may be stronger than your family ties but under the law they have no say unless you take the steps to give them a voice.
“Especially if you have family members that you are not fond of,” Blaisdell says. “You can get a very undesirable result if you don’t have some kind of documentation.”
Even if you think that you don’t have anything that would warrant you to have a will, Blaisdell says that even the smallest estate can cause a big problem without documentation.
“I have a car, I have a couple bank accounts, maybe a house; I don’t really have anything, but by not doing anything you can create a huge costly mess later,” he says.
What documents should you consider?
As stated earlier, estate planning documents primarily fall into two categories: what happens to my stuff when I die and what happens if I can’t make decisions for myself?
There are several different types of documents that you might want to consider having as part of your estate planning, and this is where a lawyer who specializes in this type of law comes in handy, but there are some standard ones that most people are familiar with.
Common testamentary documents — a document that explains your wishes when you die — are a last will and testament and a living trust.
“A will is a snapshot document. It basically says upon my death, take my assets and do this,” Blaisdell says. “With a trust you appoint a trustee and your assets are held in the trust and the trustee can then manage them for whatever period of time you designate.”
Moneymaker adds that if avoiding probate, which is the process of a judge overseeing the distribution of one’s assets, is something you want then you should be looking at a trust estate plan.
“That can get confusing because a lot of people think that a will avoids probate and it doesn’t,” she says. “If you’re using a will as a way to pass your assets along, you are guaranteeing the document will have to be probated and your heirs will have to go through time and money before they can actually get your assets. A trust would take everything out of your hands and put it into a trustee’s hands after you die so there is nothing to probate.”
A will-based plan might make more sense and would avoid probate is if you are legally married.
“Using myself as an example,” Moneymaker says, “I’m married and I have a will-based plan because all of my assets that would go to my wife are based on joint accounts and beneficiary-based accounts. So, my portfolio on death is transferred to her. My IRA has her as the beneficiary. My bank accounts have her as paid on death, so even though I have a will-based plan there won’t be any probate if I were to die first because it would automatically go to her.”
Some important advanced directive documents — a document that state’s a person’s wishes for medical care if they are unable to speak for themselves — to consider include a medical directive (also known as a living will) and a durable power of attorney.
“Your durable power of attorney would be for your finances, naming someone who could pay your bills, refinance your home if need be, deal with the IRS, social security and insurance companies, those type of things,” Moneymaker says. “Your medical directive would name someone who can make medical decisions for you if you are incapacitated, as well as — deciding ahead of time — if you want life-sustaining measures to be withheld. In other words do you want to ‘pull the plug’ is kind of the crass way to say it.”
Other documents that might be considered include a pre-need declaration of guardian, which says if the court for some reason needs to appoint a legal guardian for you who do you want them to look to, and a document that gives authority to make funeral arrangements.
“It can be very problematic for unmarried couples because they’re essentially a stranger legally,” Blaisdell says. “It can get really ugly when a partner knows what the deceased person wants and the deceased person’s family conceived something very different, so now you are not only dealing with the grief of somebody dying but you are also fighting over what to do.”
“It’s important especially in our community with individuals who may have some animosity amongst family members,” Moneymaker adds. “When someone passes, they don’t want the family trying to intervene and get the ashes or make decisions about burial or cremation if that’s not what they want, so having that stuff in writing makes it more likely that their wishes are going to be followed in the end.”
What should you do with your estate?
Before meeting with an estate planning attorney, you will want to have a good idea of what types of assets you have.
“Checking and/or savings, retirement accounts, brokerage accounts, other types of investments, do I have rental properties or vacation properties, these are the things that a good holistic estate planner is going to want to know,” Moneymaker says. “That lets them see ‘OK, do we need a trust-based plan put in place or can we accomplish your goals by simply making sure that your beneficiaries are put in place?’”
Also deciding what a person’s final wishes should be and what they should do with that estate is a decision solely for the person who owns it.
“What I often tell clients is this is one time in your life you get to be selfish,” Blaisdell says. “This is about what you want, so you tell me what you want and we go from there.”
Both Blaisdell and Moneymaker added that they deal with a substantial LGBTQ+ cliental, and often see situations where someone comes in, doesn’t have a great relationship with their family and isn’t sure what they want to do with their estate.
“That’s not a decision I would make for them but we talk it through, what is it that you want your legacy to be,” Moneymaker says. “It’s mainly about getting people comfortable to talk about what they want to happen when they die. If someone is talking about them in 50 years, what is it that you want them to say?”
“Often they leave everything to their unmarried partners, children, nieces and nephews, their partner’s children, brothers and sisters. We have a lot of clients who leave some or all of their estates to charity,” Blaisdell says. “It’s not uncommon on the first visit or with the first conversation for people to say, ‘I have no idea what to do with my money.’ You don’t do this all in one visit. Estate planning takes some time and that time is built into the process for that reason. You want people to take their time, sit and think about things. Quite often people don’t like thinking about it and often there are competing interests.”
What are some common issues to watch out for?
A big mistake, Moneymaker says, is when people try to do estate planning themselves.
“I had a case where someone tried to do their own will but it wasn’t signed properly,” she says. “He meant to leave everything to his partner but now it’s not going to the partner because it wasn’t done correctly. Nobody wants to spend money on estate planning, and I get that, but if you don’t do it correctly you are not going to have your wishes followed.”
Blaisdell recognizes that the cost of estate planning is a reason that some people don’t do it but he says that a little money now goes a long way to avoiding a mess later.
“The cost of estate planning is typically so much less than an unplanned probate where you have nothing,” he says. “You can plan your entire estate so you can avoid probate entirely, so you don’t have to go through that legal process involving the court or the judge. Most people can do that, and that takes a little bit of time and a little bit of money now versus if you die without something in place, when it will take a lot of time and a lot of money to figure out what your estate is.”
Another concern that Moneymaker brings up is when non-married couples buy a home or condo together.
“They will think we own it jointly because we are on the deed but it turns out that the deed has their name on it but it’s not joint with right of survivorship,” she says.
Joint with right of survivorship is a legal arrangement that gives two or more people equal rights to an asset or account, and also provides survivorship rights if another account holder dies. Without it when one of the partners dies their share goes to whoever their heirs are, not the other person on the deed.
“A recent case I had, these two women were partners for 40 years, their names were both on the deed but they didn’t realize that they didn’t own it with right of survivorship, so when the one partner died all of her share went to an estranged daughter who didn’t get along with the couple at all,” Moneymaker says. “So now my client has to share a couple of different houses with this daughter that her partner didn’t even have a relationship with. It is an easily fixable thing if you do it before someone passes. Once they pass away it is stuck how it is.”
Common in the LGBTQ+ community is treating our pets as children, so just as with children you don’t want to forget to include your pets in your estate planning.
“We can set up a trust to take care of their pets if they were to pass,” Moneymaker says. “But there’s a myriad of ways that we can plan for pets, it doesn’t have to get complex like with a trust. We can simply identify the caretaker of the pet, providing them funds to rehome the pet; I deal with people every week whose pets are like their kids.”
Final thoughts?
“It is really, really hard to contest a will,” Blaisdell says. “So even just doing a simple will or trust is enough to determine where your assets will go. A family member, or anyone, challenging a will or a trust has a very high threshold, a burden to prove that that will or trust isn’t valid. If you leave your family out of your testament wishes with a valid will or valid trust it is highly unlikely they will be able to challenge it and get anything.”
“There are key objectives for any of us — whether you are gay, straight or somewhere in between — you want an estate plan that protects the surviving partner and lets them live in a manner in which they have become accustom,” Moneymaker says. “You want to keep control with the people you want to have control, and if you don’t put that in writing then that family that you may not want to be in charge is now in control of your finances and your health care. We all know we are in line somewhere; we just don’t know when our number is going to be called so it is best to be prepared.”
Dyer & Blaisdell is located at 416 Ferncreek Ave. in Orlando. For more information or to schedule a consultation, call 407-648-1153 or visit DyerBlaisdell.com.
Ferrari, Butler & Moneymaker is located at 3833 Central Ave. in St. Petersburg. For more information or to schedule a consultation, call 800-484-0473 or visit LizMoneymakerLaw.com.
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