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10 LGBTQIA+ Estate Planning Mistakes to Avoid in Your Florida Estate Plan

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LGBTQIA+ estate planning Florida

Estate planning gives you the ability to decide who will inherit your property, who will manage your financial affairs if you become incapacitated, who will make healthcare decisions for you, and who will be responsible for carrying out your wishes after your death. Although these concerns are important for everyone, they can take on additional significance if you are a member of Florida’s LGBTQIA+ community. Marriage equality provides important legal protections, but marriage alone does not address every estate planning concern. As the Vero Beach attorneys at Kulas Crawford & Smith explain, avoiding the following common LGBTQIA+ estate planning mistakes in your Florida estate plan can help you protect yourself, your partner, your children, and the people you consider family.

  1. Assuming Your Long-Term Partner Will Automatically Inherit from You. One of the most consequential mistakes an unmarried LGBTQIA+ couple can make is assuming that the length or seriousness of the relationship creates inheritance rights. Unfortunately, however, Florida’s intestate succession laws determine who inherits probate property when you die without a valid Will or trust and those laws focus on legally recognized family relationships. An unmarried partner does not acquire inheritance rights simply because you have shared a home, combined household expenses, or remained together for decades. If you die intestate, your partner could receive nothing from your estate. Instead, your probate assets may be passed on to children, parents, siblings, or other relatives under Florida law, which can be particularly problematic if relationships between your partner and biological relatives are strained. Family members who inherit your property may have very different ideas about what you would have wanted.
  2. Believing Marriage Makes an Estate Plan Unnecessary. The legal recognition of same-sex marriage provides married LGBTQIA+ couples with important rights, but marriage should not be treated as a substitute for comprehensive estate planning. While a surviving spouse has important rights under Florida law, those rights do not necessarily mean that your spouse will receive all your estate assets, much less in the manner you intended. If you are part of a blended family, you may want your surviving spouse to have financial security for the remainder of your spouse’s lifetime while also ensuring that certain assets ultimately pass to children from a previous relationship, but Florida’s default inheritance rules may not accomplish that objective.
  3. Failing to Plan for Incapacity. People frequently associate estate planning exclusively with death, an approach that overlooks an estate plan’s ability to protect you if illness, injury, or cognitive impairment leaves you unable to manage your own affairs. An incapacity plan can be especially important if you want your partner or another chosen individual to make financial and/or healthcare decisions for you if you are incapacitated. A Durable Power of Attorney can authorize an Agent you select to manage designated financial and legal matters while a healthcare surrogate designation allows you to identify the person you want making medical decisions when you cannot provide informed consent yourself. Finally, a Living Will can document your preferences regarding life-prolonging treatment and other end-of-life issues. Without appropriate documents, the person you trust may encounter legal or practical obstacles when trying to act on your behalf and court intervention may become necessary to establish authority over financial or personal matters.
  4. Forgetting to Update Beneficiary Designations.  Your Will and trust are only part of a well-though-out and comprehensive estate plan. Retirement accounts, life insurance policies, payable-on-death accounts, and other assets may transfer according to beneficiary designations rather than the instructions contained in your Will or trust, making outdated beneficiary designations particularly dangerous. Review beneficiary designations periodically and coordinate them with the rest of your estate plan.
  5. Overlooking the Importance of Legal Parentage. Estate planning for LGBTQIA+ parents can involve issues that extend beyond identifying who should inherit property, including the issue of legal parentage. Families may be formed through adoption, surrogacy, donor conception, assisted reproductive technology, or prior relationships. Sometimes, the person that you and your child consider a parent may need additional legal protection to ensure that the parent-child relationship that you take for granted receives appropriate legal recognition. Your estate plan should also address legal guardianship in your Last Will and Testament where you have the ability to nominate the person you want to care for minor children if the appropriate circumstances arise.
  6. Failing to Protect Your Chosen Family. For many LGBTQIA+ individuals, the people who function as family extend well beyond biological relatives. Your chosen family may include a long-term partner, former partner, best friend, mentor, caregiver, godchild, or another person who has played a central role in your life. Florida’s intestate succession laws, however, do not distribute your estate based on emotional closeness. As such, a friend who cared for you through an illness may have no inheritance rights and the person you have considered family for 30 years could receive nothing while a distant biological relative you barely know inherits from your probate estate. Estate planning allows you to legally recognize relationships that Florida’s default inheritance laws may not.
  7. Failing to Protect Your Partner’s Right to Remain in Your Home. Your home may be one of your most valuable assets, but its significance can extend far beyond its financial value. For a surviving partner, remaining in the home you shared may provide stability during an extraordinarily difficult period. Unmarried couples, however, should be particularly careful about assuming that living together creates ownership rights. If your residence is titled solely in your name and you die without appropriate planning, your unmarried partner may have no automatic right to inherit your ownership interest. On the contrary, the property could pass to other heirs, creating the possibility that the surviving partner will face uncertainty about remaining in the residence. Simply adding someone to a deed is not necessarily the appropriate solution because Florida homestead rules, creditor concerns, gift tax considerations, existing mortgages, relationship changes, and other factors can affect the consequences of changing ownership. Instead, discuss your objectives with your estate planning attorney.
  8. Using an Outdated Estate Plan. An estate plan that accurately reflected your life 10 or 15 years ago may be poorly suited to your circumstances today. This issue can be particularly relevant for LGBTQIA+ individuals who created estate plans before nationwide marriage equality. Older documents may contain provisions that were specifically designed to address the lack of legal spousal protections available when the plan was originally created. For example, since you created your plan, you may have married or divorced, ended a long-term relationship, adopted a child, or changed your mind about who should serve as Executor, Trustee, or Agent. Even if your core objectives have remained unchanged, the documents used to accomplish those objectives may deserve review.
  9. Assuming a Will Is All You Need. A Last Will and Testament is an essential estate planning document for many people, but a Will alone does not constitute a comprehensive estate plan. Your Will primarily addresses the disposition of probate assets after your death. It can identify beneficiaries, nominate an Executor, and address guardianship for minor children. It does not, by itself, solve every incapacity, probate, privacy, or asset-management concern. A Revocable Living Trust may provide additional benefits by allowing property transferred into the trust during your lifetime to be administered by a successor Trustee following your incapacity or death without requiring those assets to pass through probate. A trust can also provide detailed instructions concerning how and when beneficiaries receive property. A comprehensive plan may also include a Durable Power of Attorney, healthcare surrogate designation, Living Will, beneficiary designations, and other documents or arrangements tailored to your circumstances.
  10. Failing to Anticipate Conflict with Biological Relatives. No one wants to create an estate plan expecting litigation, but ignoring foreseeable family conflict can leave your partner and other beneficiaries vulnerable. If you have a strained relationship with parents, siblings, adult children, or other relatives, think carefully about whether those individuals might challenge your estate plan after your death or attempt to interfere during incapacity. Disputes may involve allegations of undue influence, lack of testamentary capacity, improper execution, or questions about whether documents genuinely represent your intentions. Estate litigation can delay administration, consume financial resources, and place considerable emotional strain on the people you intended to protect. The possibility of conflict makes careful planning particularly important. Clearly drafted documents can reduce ambiguity while proper execution helps establish their validity. You should also think carefully about fiduciary appointments to ensure that you name a reliable Executor, Trustee, and Agent.

Can We Help You Avoid LGBTQIA+ Estate Planning Mistakes in Your Florida Estate Plan?

To learn more, please join us for an upcoming FREE seminar. If you would like assistance to avoid making common LGBTQIA+ estate planning mistakes in your Florida estate plan, please contact an experienced Vero Beach LGBTQIA+ estate planning attorney at Kulas Crawford & Smith by calling (772) 398-0720 to schedule a consultation.

Andrew Smith
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