Article on Estate Planning for Gay and Lesbian Elders
The proactive and instrumental use of estate-planning documents by same-sex couples to create families has received a good deal of attention from academics, practitioners, and advocates, but very little consideration has been given to the distinct set of concerns faced by gay and lesbian elders. The failure to address the specific estate-planning needs of gay and lesbian elders reflects a larger silence regarding aging and the gay and lesbian community. Marginalized by ageism within the gay and lesbian community and homophobia within the senior community, the concerns of gay and lesbian elders have been overlooked and ignored. For example, the three signature issues of the contemporary gay and lesbian movement for civil rights–marriage equality, employment nondiscrimination, and the efforts to repeal the military’s Don’t Ask, Don’t Tell policy–do not speak directly to the needs of elders. The three issues of greater concern to gay and lesbian elders are the legal fragility of their chosen family, financial insecurity, and antigay bias and discrimination on the part of service providers and senior-specific venues.
Efforts to address these concerns will require significant legal and policy reform, as well as increased educational outreach efforts. In the meantime, however, gay and lesbian elders can use basic estate-planning tools to serve as a partial bulwark against many of the inequities they currently experience. This Article outlines the ways in which estate-planning tools can be used to help mitigate the cumulative force of antigay bias in succession laws, heteronormative aging policies, and decades of homophobic laws and regulations. With an emphasis on the seniors who are most at risk, this Article focuses primarily on the ways in which estate planning for gay and lesbian seniors differs from gay and lesbian estate planning generally and therefore, does not address issues related to tax planning that would be applicable to affluent testators.
This Article is organized thematically around the three areas of core concern for gay and lesbian elders–chosen family, financial insecurity, and antigay bias. Part II provides an overview of the current generation of gay and lesbian elders, including a summary of pre-Stonewall history and existing demographic information. Part III outlines the challenges associated with drafting an estate plan that favors chosen family over next of kin. Part IV engages the topic of financial insecurity, discussing various benefits and government programs, such as social security and Medicaid planning. Finally, Part V discusses why an integrated elder-care plan is an essential component of estate planning for gay and lesbian elders, and how antigay bias and homophobia can derail even the most well-designed estate plan. A brief conclusion notes that estate planning is at best an imperfect solution to a much larger problem. Significant legal and policy reform will be necessary to ensure equity and dignity in aging regardless of sexual orientation.