Estate Planning for LGBTQIA+ Families: The Essential Documents to Have in Place 

How to Protect Your Family and Your Assets 

For all families, estate planning is a critical process to ensure you control your finances and property. Essentially, estate planning ensures you control your finances and property while you’re alive and well, and that you designate trusted people to make financial and medical decisions if you become incapacitated.

For LGBTQIA+ families, these steps and protections are especially important to ensure your assets go where you want, when you want, and how you want after your death with the proper documentation. There are also specific marriage and family planning steps and legal documentation for LGBTQIA+ families that last beyond any potential changes to marriage protections.

To help families understand the steps to legally protect themselves and their families and align financial decisions with their values, Clean Yield hosted a panel webinar during Pride Month 2026 with practicing attorneys Amy Escott at Clarke, Demas & Berger, and Deborah Danger at DangerLaw to gain insights and strategies on LGBTQIA+ estate planning.

“Estate planning is important for everybody,” Clean Yield’s Elizabeth Levy shared during the conversation.” At Clean Yield, we had heard nervousness from some clients at the beginning of the Trump Administration around the status of Obergefell after Dobbs. We have been wanting to pull this conversation together for a while to answer these fears and help clients prepare.”

You can watch the full conversation or read an edited transcript below.

Note: None of this is legal advice. Contexts are different in different states, and you should contact your own lawyer.

Elizabeth Levy: Before we dive into specifics for LGBTQIA families, Deb, will you remind us what is meant by estate planning in general, and why it’s important for everybody?

Deborah Danger: Estate planning is planning for your estate, technically, what you own when you die. Somewhere between then and now, you need a plan for your estate. You’ll need someone to step in your shoes and make health care choices for you, or manage your affairs, so documents for incapacity are also rolled up into estate planning. A complete plan is what happens when you can’t do it yourself.

Liz: Amy, let’s dive in a bit more about why this is even more important for LGBTQIA+ families. Can you talk to us about what changes in federal policy might mean for families living in states like Vermont or Massachusetts?

Amy Escott: Let’s start with Dobbs, which was a pretty hard decision, overturning a 50-year precedent of body autonomy for women. Within that opinion, Justice Thomas argued that the court should go further and reconsider other past SCOTUS decisions based on due process, which includes the right to contraception, marriage equality, and privacy in the bedroom, and he actually said that the court has a duty to correct these errors. This was seen as a direct threat to marriage equality in the Obergefell decision.

Thus far, the court has not taken up the matter again. If this were to make it up to the court, it would have to wind its way through a bunch of other courts first, and we would have a lot of time to prepare.

When we’re talking about if marriage equality is overturned, this is at the federal level. While we’d still sort of have state-level jurisdiction, there is a lot at stake at the federal level. It would include the portability of estate tax exemptions and gift tax exemptions. You wouldn’t be able to avail yourself of your spouse’s unused portion of those exemptions. There are spousal abilities to roll over an IRA after one spouse passes away. There are things like filing your taxes jointly as a married couple, Social Security retirement and spousal benefits, some employee benefits and veterans’ benefits, the Family Leave Act.

So there is some concern, and some of these things we can kind of account for in our state plan. And this is all contractual, and we can contract with each other and still kind of maintain some safety nets and make sure that our chosen families are the ones making the decisions and being in charge of ourselves and our assets if something were to happen to us.

Deborah: I’ll add one thing to that, which is there are all kinds of people who plan their retirement, where they’re going to live, because there’s no estate tax. You can do the same thing for the rights to your relationship. Be thoughtful about what rights and privileges you get at the state level.

Liz: What do the different protections in different states at the state level mean? If protection at the federal level goes away, what happens within the states that do have protections?

Deborah: The first question you should ask yourself: Am I going to be subject to a federal estate tax? Do I really care about that? And if you have more than $15 million, then yes, you should. And: Marriage is a contract.

So, you go into the contract hopefully knowing what rights and duties you have to each other in the jurisdiction that you submit to. If marriage protections at the federal level go away, the right to contract does not. I think that gives people in our community more creativity, more cleverness — whatever you want it to be, it can be. Just know that you both have to go into it knowing what the terms are. So, marriage is a bundle of rights, and you should just look at your own state’s laws, because it is governed by states. And if you don’t like it, you can move, get divorced, and create your own plan.

Amy: I have a Vermont perspective on this, and I’m proud of our little state, that we were the first state to recognize same-sex unions and civil unions, in 2000, followed shortly by marriage equality in 2009.

The other thing that I work with a lot is families — same-sex couples who are making families, having children — and in Vermont, Vermont has worked really hard to do things like degender their parentage laws, so instead of father, mother, and everything on birth certificates, we have a parent and parent. We also have been able to take advantage of second-parent adoption, and until recently, that has been kind of shoehorned under the stepparent adoption provisions in our statute. We now have a process called confirmatory adoption. We don’t have the criminal background checks and all the potentially demeaning process that people who are this child’s parent have to go through to get that piece of paper that says that they’re the parent.

And the reason that is important is it does offer some protection across states. So if folks from Vermont adopt their child, get that paper that says they’re both the parents, and then they move to a less friendly state, and they split up, or something happens, they have this piece of paper that’s recognized under the Full Faith and Credit Clause of the Constitution in another state that says they are the parents. Figure out what your relationship is, what your family’s going to look like, and maybe consider the states that are going to honor or best protect that.

Deb: I do want to say, whatever your definition of family is — in Massachusetts, you can have more than two parents. Massachusetts tends to be pretty welcoming of polycules, triads, and things like that, so that’s another thing that’s probably not going to fit in the silo of marriage, so stepping out of that silo and contracting with whatever rights you want to give and take from each other is another way to go about implementing a similar plan.

Amy: And I would like to add also, as far as the actual language in these documents, a lot of generic documents might have some presumptions about being married, and I think, Deb, you spoke to the fact that you can put some language in your documents, like, yes, at the federal and state level, my marriage is considered valid, if for some reason in the future it’s not considered a valid legal marriage, then I want this person to still be treated the same as a spouse would under the laws of the state.

Deb: You can define things, like, if you’re transgendered and you have a dead name, you don’t have to put that at the beginning, where you have your dead name. We can just point to something embedded far at the bottom of the documents. It’s not the first thing that jumps out at people, so I think Amy and I are both trying to be sensitive and accommodating to what you should have in your estate plan.

And I would say the basic elements: you need a health care proxy, so someone can make health care choices for you when you can’t. Put a HIPAA release into that — a health care proxy is at the state level, as to how you appoint someone to make healthcare choices for you. HIPAA is at the federal level. That’s the thing that makes your health care providers have a duty to keep your medical information confidential. You can waive that, so that your health care proxy can not only make choices for you, but can also know what they are.

Power of attorney is something that, when you’re incapacitated, someone can step in your shoes and do things like file your taxes, manage your money, pay your bills. I put a HIPAA release in that, too, because you might need the same person, you might need a different person, but I want the person in your power of attorney to be able to directly access your medical care team, so that if they have to negotiate with your health insurance company to cover more of the expense, they can go directly to the provider of that information, and they’re going to ask different questions than your health care proxy. And then there’s the will and a trust, which I think Amy and I both prefer, a revocable trust, something that’s kind of a will substitute. And the benefits of revocable trust are, number one, it can take care of you when you’re incapacitated, unlike a will, which pretty much only serves you when you pass away. It also allows you to avoid probate. So, in Massachusetts, probate is a process that can’t be completed any faster than one year from the date of death.

And the reason for that is because you end up with assets that are owned by a dead person,right? You and your spouse own your house with rights of survivorship, one of you passes away, then this person passes away. If this person passes away and wants to sell or refinance, you just file a death certificate. That explains why two people went in and one person comes out. But when this person passes away, the title is in the name of someone not living. Probate takes it out of this person’s name into the name of someone who’s living.

Amy and I do planning with the revocable trust. At the end, you don’t own anything–the trustee of your trust owns everything, and you are the trustee of your trust. From a control and use standpoint, you don’t care whether you own it individually, or as trustee. So, now you’ve got two trustees that own that house. One passes away, you’ve got a sole trustee. When this person passes away, you can’t simultaneously be a trustee and not living, so you have to vacate the office of trustee. But your successor comes in, who has to be living, and so this evergreen process means we never have an asset in the name of someone who’s not living. So, in that example, you can pass away in the morning — it’s very sad — and in the afternoon, you can start giving your stuff away, because we don’t have to go through probate. We still have to keep some aside to pay your debts, but the majority of it can just go to people who need or want your stuff right away.

It’s magic. Personally, I think all these documents are — this is the way I look at it. You have a document, it says all these things, you sign it, and it changes everything. So how is that not magic?

Amy: It’s magic. Personally, I think all these documents are — this is the way I look at it. you have a document, it says all these things, you sign it, and it changes everything. So how is that not magic? But what I explain to people is similar to what Deb was saying, that probate process — one of the things that we try to do is make sure that things are set up to avoid that, because it basically freezes your assets. They get frozen in time, and nothing can happen with them without oversight of the court. So the will is the document that is the instruction guide for probate. If we have everything set up with the trust and other documents, the goal is to not need that will, not need to go through that process, and I love the way Deb described how the trust works. The trust owns the things, and you don’t own it, and so nothing has to be probated.

In Vermont, we have one document for the health care, it’s called an advanced directive, which is both the proxy, where you’re designating an agent to make these decisions and be able to access the HIPAA information, and it also serves as a directive — these are my wishes. So it’s one document in Vermont.

Deb: When you’re choosing a health care proxy, it should be someone that you trust to share your wishes with, because it’s the hardest part of being a proxy.

Amy: We definitely recommend folks to provide their proxy with a lot of discretion, and don’t get nitty-gritty about things. There should be only one person, because if you have multiple people and they don’t agree, that’s a problem. You can have a successor lined up.

Deb: And to clarify, a revocable trust is where everything goes to the trustee, which is you, and you retain the power to amend that trust. So as long as you’re alive with enough capacity, if you’ve listed a friend and you get mad at your friend, you can change. Irrevocable trusts are completely different.

Liz: And then Deb, when you’re talking about contracting writ large — what do you mean by contract? And are the documents that you listed for us really helpful, are those the contracts you’re referring to, or is there something else needed?

Deb: Marriage is a contract. So is a prenup. If you’re anticipating getting married, and you say, we don’t really like those laws, we’re going to do a prenup that’s different. We’re going to change the alimony, we’re going to change the distribution, you’re not going to get my inheritance, you’re not going to get a right to my business. Those rights and privileges typically come with marriage, and you’re changing that.

So, in the same way that if you pass away without an estate plan, guess what? You’re not the first one. So Amy’s and my states each have a document for intestacy that says, if you die without a will, this is how things go. But if you have an estate plan, which is like a contract, you can pave your own road.

Liz: I’m going to go through a few of the questions that we’ve gotten so far. The first one is, do you have tips or suggestions on finding an appropriate executor if one doesn’t have kids? Or maybe start with what an executor is, because I don’t think we’ve talked about that yet.

Amy: So, an executor is the person that you appoint in a will, who handles your estate if it needs to be probated. So, an executor is someone who would see that probate process through. Our goal as estate planners is to try to make sure we don’t have to need the executor. But you still need to have it just in case — in case something didn’t get put in your trust, or you didn’t have beneficiary designations on something, your executor is going to have to go through probate in that case.

So that’s what an executor does, different than a trustee. But if it becomes a successor trustee of your trust, the function is the same as far as managing the assets and distributing appropriately according to your trust document. The trustee would read your wishes and make sure your assets get distributed appropriately without having them frozen by the court.

So that is what the executor does. We try to set it up so we don’t need an executor, but executor and trustee are sometimes the same individual. And if you don’t have children or a trusted friend or family member, to serve in either the role of executor or trustee, there are certainly corporate organizations available, like we work closely with the Trust Company of Vermont, who we can include as someone who could step in those roles if you don’t have someone to do it. Certainly, there’s a fee involved, but any executor or trustee that you appoint is entitled to compensation from your estate, because it is work.

Deb: If you fit into the category of what’s called a ‘solo ager,’ someone who doesn’t really feel comfortable naming family members, or friends, or neighbors, you’re looking for someone who can serve in those roles: health care proxy, power of attorney, personal representative or executor, and the trustee.

Sometimes it’s better to ask your accountant, or your lawyer, your financial planner. Sometimes a local bank has someone who could do it. You could even ask your neighbor, because an imperfect plan is better than no plan at all. Sometimes, the other thing that I suggest is you name a credential. So you say, when I pass away, I want my nieces and nephews, my charity, whoever, to get all this stuff. And I ask them to agree on a professional fiduciary who can manage this after I’ve gone. And that professional fiduciary has to be a banker, a trust officer, a lawyer, an accountant, or a CPA.

Liz: Another question about a couple or a family with dual citizenship, or residing in a different country. For a couple that is involved in different countries or citizenship, do they need to have all of this documentation in place in both countries?

Amy: Yes. People ask me that question from state to state. And generally speaking, as long as your documents were signed pursuant to the laws of the state that they were signed in, they’re considered valid in other states, so there’s portability of documents within the states. But I doubt that that exists for different countries, and frankly, I don’t know, but I would for sure do documents in both places.

Deb: Yeah, I agree. Article 4 of the Constitution says any document properly executed in one of these United States or its territories should be honored by all of them. If you’re in another country, the Constitution does not go over the ocean.

So, what I recommend is you do what you want to do for your domestic assets, and then you go to the foreign country, and say, this is what I want my plan for this jurisdiction to say — I wanted it to match what I did in this jurisdiction — because Massachusetts is not going to have any jurisdiction over your international assets.

Liz: And then, Deb, I wanted to follow up. So, let’s say there is a couple that is married now, legally, in an unfriendly state — I think we’ve been picking on Kentucky, so we’ll stay there. And they move to Massachusetts. If federal protection was lost, and that unfriendly state, Kentucky, revoked marriage protections, would that marriage still be legal in Massachusetts, where they reside now?

Deb: It’s easy enough to get married wherever you move, if that happens. I’m not super worried about that. I will call everyone’s attention to when Massachusetts started honoring same-sex marriages. Suddenly, it was like this tourist hotspot. Everyone would come to Massachusetts and get married and go back to Kentucky.

Liz: That kind of got into one of the other questions that was sent to us ahead of time, the limitations or benefits both of partnerships versus marriage, and why you might want to pick one over the other.

Deb: I get this question all the time, is there a financial benefit to us marrying? I just really hate quantifying love, which is kind of what it feels like, which is why I think Amy and I are like, whatever. If you want to get married, get married. If you don’t, don’t, because of this right to contract. We can come up with something that’s very similar. Or very different, depending on whatever your vision as a couple is. You don’t get all the protections that Amy went over first. But sometimes you get even more.

If you want to get married, get married. If you don’t, don’t, because of this right to contract.

Amy: A lot of straight couples choose not to get married, for whatever reason, so there’s that also. It is up to the couple. Their union is their union, whether they’re married or not, and it really depends on specific circumstances.

Liz: We do have one more question, and this is relating to trust that we’ve been talking about. Is it more complicated to do things like sell your house or get a home equity loan once the house is owned by the trust?

Amy: No. You need one extra document to file in the land records, which is a trust certification, just confirming that whoever’s signing the documents is the trustee and has the authority to do it. But it is not more complicated. Because essentially, like Deb said, you’re the donor of the trust, you’re the trustee of the trust, and you’re the beneficiary of the trust when you set up a revocable trust. And so, it’s essentially — I like to tell people it’s just your social security number, it’s you, but it’s not you. It’s like a bucket that you put your stuff in, but it’s still all your stuff, and you can do whatever you want with it. So it does not complicate real estate transactions.

Deb: I will say two things. Number one, there’s a federal law called the Garn St. Germain Act, which says that if your mortgage says you can’t transfer it — it’s an unassumable mortgage — so if you sell your house, you have to pay off your mortgage, and someone else gets to pay the bank more fees. So, Amy and I just told you, transfer your house to your trust. Despite what the mortgage says, which says don’t transfer your house, Garn St. Germain says, as long as you’re transferring your property to a revocable trust for estate planning reasons, it doesn’t trigger the acceleration of your mortgage. And the second thing is, there’s usually also a carve-out in your title insurance. So, to Amy’s point, it really is no different whether you sign that deed as you, or you the trustee.

Amy: And work with local lenders to the extent possible, because they’re more able to deal with this. If you’re working with a big national lender, they have to check boxes. I always encourage folks to find a local lender. They just know the local scene better and can be more nimble with these types of things.

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If you’d like to learn more about aligning your financial planning and estate planning with your values, we welcome the conversation.