For my first interview for Queercents, I decided we could use some advice about trusts and estates, how to make sure our families, partner and charities can benefit from our money should we pass away. And what about if our deceased partner’s family tries to take what is meant for us? An ideal person to answer these questions just happens to be the love of my life.

Karolyn Hicks practices Trust and Estate Law and General Civil Litigation in Seattle with Stokes, Lawrence, Velikanje, Moore and Shore. Last year she won “Outstanding Young Lawyer of the Year Award” from the King County Bar Association. Karolyn was on the board of directors for the WA state ACLU for 5 years and has done pro-bono work for queer non-profits and our neighborhood free legal clinics.

Is having a will or trust more important for LGBT people?
Usually, but it depends on how you want your estate divided when you die. These are generally considered domestic matters which each state decides for itself and each state’s law is different. That being said, some general statements can guide you. For example, generally if you are in a same-sex relationship and registered as such in a state where same-sex marriages, civil unions, or domestic partnerships are recognized by the state, then your spouse and/or children (if any) will inherit your estate without the need for a will or trust.

An estate planning lawyer in your state should know whether or not same-sex relationships are legally recognized in one form or another in this context. You can also find this out for yourself when you register your relationship in your state or even on the internet — one of the most reliable queer legal organizations is Lambda Legal and its website is usually current and accurate on the status each state’s laws, see http://www.lambdalegal.org/our-work/states/.

If you are in a state that does not legally recognize same-sex relationships and you do not have a will drawn up or trust established, then your children (if any) will inherit your estate. If you do not have children, your parents will inherit your estate. If your parents have already passed away, then your siblings, and so on and so on — sometimes it helps to think of this as an umbrella — it goes up your lineage and then back down around you if you have not personally continued your family line. These are generally referred to as “intestacy laws” and what they mean is that the state has decided for you the order in which your estate will pass if you haven’t decided for yourself. One important fact about intestacy laws is that in many states (and perhaps all states, but I am not sure because I am only licensed to practice in Washington), it looks at the legal and not blood relation among the parties so it should not matter if you, your child or your siblings is adopted; adopted family members are treated the same as blood relations for purposes of intestacy laws (at least in Washington and likely in other states).

Is a lesbian or gay partner/beneficiary of the deceased likely to be treated differently by the courts than the family members if they get into a trust or estate dispute?
This may be less of a legal question and more of a geographic one. My opinion is that in large part, this will depend on how queer-friendly the presiding judge is. In Seattle where I live, the judges are generally queer friendly and I would not expect them to treat a same-sex widow that had registered the relationship as a domestic partnership under Washington State’s registry any different than a widow from a married heterosexual couple. If, however, the relationship was never legally registered as a domestic partnership, then I would expect the court may choose to treat it different than a legally recognized couple (whether gay or straight). In other words, I think it would turn less on whether the widow is gay or straight and more on the legal status of the relationship when the partner died. Also, you may find it interesting that disputes related to trust and estates in Washington State are non-jury matters so the make-up of the general population (read: potential jurors) won’t matter in these disputes.

At what point does it make sense financially to hire a lawyer if one wants to contest the division of thier partner’s estate?
I think a hypothetical is the best way to answer this one. Let’s say you and Sally live in Washington State and had been together for 20 years when she died. You two never registered as domestic partners and now her parents have come in and tried to take everything that the two of you owned because say, for example, the house was only in Sally’s name. In that case, it likely makes sense to bring a court action regardless of the size of the estate because there is a good chance that you actually acquired an interest in that property regardless of whose name it is in; at least in community property states such as Washington. One thing to keep in mind is that lawyers are expensive, but if you stand to lose a significant size of what you and your partner acquired while you were together it likely makes sense to at least hire a lawyer in your state and get a legal opinion up front about what outcome you can expect.

How much in assets does one have to have before hiring an estate-planner makes sense?
Not much. A will is a simple document that can often be drawn up for a flat fee. If your net assets exceed your debt/liabilities and you do not want the “intestacy laws” to determine how your estate is divided when you die (because for example you want to give some money to a queer organization), then a trip to an estate planning lawyer makes sense.

Thank you, Karolyn!

For information on wills, see Nina’s article here.