With the threat growing that Obergefell v. Hodges will be overturned and with it, the LGBTQ+ community’s right to marriage equality, it is more important than ever for queer individuals and couples to have an estate plan in place.
Here are 9 key documents that make up a strong estate plan for gay couples.
First Key Document for LGBTQ+ Couples: Health Care Power of Attorney (POA) + HIPAA Release
A health care power of attorney allows you to appoint someone to act on your behalf if you’re unable to make medical decisions. The agent should act as if they were you, making choices based on your values and preferences.
By statute (default), your legal spouse is usually considered your healthcare agent. However, if marriage is invalidated or not recognized, decision-making falls to adult children, then parents, then siblings. These default individuals may not share your view on how/when to receive care.
Due to the threat of gay marriage being overturned, it’s incredibly important for gay couples to have a valid health care power of attorney in place to ensure their spouse or partner can legally make those decisions.
A HIPAA release (often included in the POA or a separate document) allows your designated person to access your medical information. Having your spouse listed on the HIPAA release ensures they will receive complete information about your health to make a sound decision.
Second Key Document for LGBTQ+ Couples: Hospital Visitation Authorization
A hospital visitation authorization outlines specifically who is your “support person” is, who must have visitation rights to see you in the hospital.
The “support person” is defined by Medicare and Medicaid laws, which give this form teeth. Almost all hospitals are recipients of Medicare and Medicaid funds, which require compliance with Medicare and Medicaid laws, regardless of whether the specific patient is utilizing those funds.
Your hospital visitation form should:
- Name your support person
- Name an alternate if the primary person is unavailable
- Optionally list anyone who should not be allowed to visit
Including this document ensures that your spouse or partner can be by your side, regardless of hospital policy or state law.
Third Key Document for LGBTQ+ Couples: Living Will/Advance Directive
A living will (also known as an advance directive) is instructions to your health care providers that if you are in a terminal state, you do not want your life prolonged, instead, you want palliative care to live out your final days as comfortably as possible. This can include directives not to use artificial nutrition (aka feeding tube), but it is not required.
Having this document:
- Ensures your medical choices are respected
- Removes the burden from loved ones during an emotional time
- Helps prevent conflict among your spouse, birth family, and chosen family
This is especially important for queer couples to avoid disagreements about end-of-life care.
Fourth Key Document for LGBTQ+ Couples: Disposition of Remains
Once a person passes away, there are many decisions to be made, like whether the person wanted to be cremated, a funeral, what cemetery, etc.
If you have strong opinions, you can write out your wishes and appoint the person legally in charge of carrying out those wishes by assigning a personal representative to handle it. If you do not have any opinion, you can still nominate a personal representative whom you trust to make those decisions for your body.
This is important for LGBTQ+ couples to avoid a fight among your spouse, birth family, and chosen family on how to handle your body once you are a spirit in the sky. All decisions are made through a Declaration For Funeral Arrangements.
in Ohio or through a similar document in Michigan, Pennsylvania, and Minnesota as they do not have a standardized form.
Fifth Key Document for LGBTQ+ Couples: Pet Care
Our pets are family and they deserve the same thought and care as the rest of our family and friends. A pet care directive—either within your will or as a separate document—lets you:
- Choose who will care for your pets
- Explain how they should be cared for
- Set aside money for their ongoing needs
You can nominate anyone, including non-profits specifically set up to rehome pets when the owner passes, to take care of your pets. While having a legal document will protect your pets, it is always a good idea to speak with the person you nominated as caretaker to ensure your pets will thrive once you are gone.
Sixth Key Document for LGBTQ+ Couples: Personal Property Memo
A personal property memo addresses where you want specific assets like a watch or a comic book collection, to go. This is often attached to a will or trust because your personal assets change over time.
You can update the property memo without updating the full will or trust. Some individuals like to keep meticulous notes on who gets what asset; other people apply the “sticker” approach (everything in the house with a green sticker goes to my dear friend Gertie, yellow sticker Elijah, etc.).
Either one will work to ensure your assets are distributed according to your wishes. If you do not have specific people in mind for particular assets, you do not need a personal property memo and can address it in a will and trust by indicating who gets all your assets.
Seventh Key Document for LGBTQ+ Couples: Financial POA
A financial power of attorney is effective while you are alive and allows the person you select to manage your finances for you. There are two types of financial powers of attorney – durable and springing.
A springing POA “springs” into effect once an event listed on the document occurs; typically, it requires two doctors to declare you incompetent.
A durable health care power of attorney is effective the day you sign it. Springing POAs can create problems when you are still competent but are not able to make financial decisions. There is a significant gap between medical competence and incompetence.
Eighth Key Document for LGBTQ+ Couples: Will
A will is a document that designates where your assets go when you die; if you die without a will, the state’s descent and distribution laws apply. Some assets may transfer outside of probate through transfer-on-death designations. Assets eligible for transfer on death designations can be found here. A will allows you to:
- Leave assets to non-relatives
- Name a guardian for children or pets
- Ensure your spouse or partner is protected if marriage equality is overturned
Address non-traditional or polyamorous family structures
Having a will is especially important for LGBTQ+ couples to preserve their rights to inherit if marriage equality is overturned. It is especially important for queer couples to include language in their will that their spouse should inherit even if marriage equality is overturned or to address rights for polyamorist relationships (which state laws are not set up to address appropriately.
However, a will alone is not sufficient to protect LGBTQ+ couples' inheritance rights – wills are public documents and are subject to challenge by kinship.
Generally, a will should be a “safety net” to cover assets that either (a) did not have a beneficiary designation or (b) did not transfer into the trust and not the primary planning tool.
Ninth Key Document for LGBTQ+ Couples: Revocable Trust
Revocable trusts can be an essential tool in LGBTQ+ couple’s estate plan. Why? Trusts avoid probate, are private, bypass outdated state laws, and are less likely to be contested by kinship or beneficiaries. Because trusts:
- Avoid probate
- Keep your estate private
- Are harder to contest than wills
- Let you bypass outdated state inheritance laws
Trusts also give grantors (person who set up the trust) more control over the distribution of their assets. Avoiding probate and outdated default state laws can provide greater protection to queer couples given the threat to marriage equality. It also allows for more flexibility in giving to chosen family and non-profits.
Final Thoughts
Estate planning isn’t just about protecting assets—it’s about preserving your dignity, honoring your identity, and protecting the people and pets you love.
Working with an LGBTQ+-affirming attorney ensures your estate plan reflects your life, your family, and your values—no matter what the future holds.
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