Estate Planning for LGBTQ+ Couples in New York

Marcus and David had been together for 19 years. They got married in 2016, the year after Obergefell v. Hodges. They owned a co-op in Brooklyn, maintained joint bank accounts, and had two children they'd adopted together. Life was settled. Legal recognition was finally in place.

Then David died suddenly of a heart attack at 52.

David's parents — estranged from him for years because of his relationship with Marcus — appeared at the funeral. Then they appeared at Surrogate's Court. They challenged the adoption of the children. They contested David's will on grounds of undue influence. They tried to claim a portion of David's estate as his "natural heirs."

They didn't win. But the litigation took 14 months and cost Marcus over $60,000 in legal fees.

Marcus had done much of the right planning. He and David had wills. They had healthcare proxies. But their documents had gaps — specifically around the trust structure that would have made them much harder to attack. They'd assumed marriage equality meant the hard part was over.

Marriage equality was essential. But it's a floor, not a ceiling. LGBTQ+ couples in New York still face challenges that thoughtful estate planning must address directly.

What Marriage Equality Means — and What It Doesn't

The Obergefell v. Hodges decision in 2015 made marriage equality the law of the land. In New York, same-sex couples had already had marriage rights since 2011 under the Marriage Equality Act. The practical effect: legally married same-sex couples in New York have the same inheritance rights, spousal rights, and tax treatment as opposite-sex married couples.

That matters enormously. It means:

• Intestate succession — dying without a will — gives your spouse the same rights as any surviving spouse under EPTL
• The unlimited marital deduction applies for federal estate tax purposes to same-sex married couples
• Your surviving spouse cannot be disinherited entirely — the elective share right applies
• Social Security survivor benefits, pension survivor rights, and other spousal benefits apply

But marriage equality doesn't protect you in the following situations:

• You're not married — you're domestic partners, committed but unmarried
• Your marriage is legally valid in New York but your estate plan doesn't reflect your actual family (biological relatives who challenge your wishes)
• Your children aren't legally adopted by both parents
• You own property in a state where same-sex marriage recognition may be uncertain
• Your hospital or extended family refuses to honor your wishes regarding medical care

The Unmarried Couple Problem: New York Intestate Law Doesn't Know You Exist

Many LGBTQ+ couples choose not to marry, for reasons that are entirely their own. Some have complicated financial reasons. Some are philosophically opposed to the institution. Some simply haven't gotten around to it.

Here's the problem. Under New York's intestate succession law (EPTL Article 4), if you die without a valid will, your estate passes to your legal relatives in a defined order: spouse, then children, then parents, then siblings, and so on.

An unmarried partner — regardless of how long you've been together, how intertwined your lives are, how clearly you'd want them to inherit — receives nothing under intestate law. Nothing. Your parents, your siblings, your estranged cousins you haven't spoken to in decades — all of them have priority over your partner of 20 years.

This is not a hypothetical risk. It happens. The only solution is a properly executed estate plan that names your partner as beneficiary explicitly and in multiple places.

The Core Documents Every LGBTQ+ Couple Needs

Wills — Both of You

Both partners need independent wills. Not a joint will. Two separate wills, each naming the other as primary beneficiary, with appropriate contingent beneficiaries for the event that both of you die simultaneously.

Your will should also name your partner as executor (with a backup). It should address guardianship of any minor children. And it should be explicit, not implicit — "I leave everything to my partner David Johnson" not "I leave everything to my family."

Revocable Living Trust

For LGBTQ+ couples — particularly those with any history of family hostility — a revocable living trust is one of the most powerful protective tools available. Here's why.

A trust is a private document. It never gets filed with any court during your lifetime. It doesn't become a public record after you die the way a probated will does. The assets in your trust pass to your named beneficiaries without going through probate at all — which means no citation to your legal heirs, no opportunity for a disgruntled family member to appear at Surrogate's Court and claim a right to contest.

Contesting a trust is significantly harder than contesting a will. The procedural protections of the probate process — which create opportunities for challengers — simply don't apply to trust assets. In David's case, a fully funded trust would have made much of that 14-month litigation impossible.

Healthcare Proxy — Critical for Both Partners

Without a healthcare proxy, your medical decisions in an emergency default to the statutory hierarchy under New York's Family Health Care Decisions Act. Spouse comes first for married couples. For unmarried couples, the hierarchy goes to parents, then siblings — people who may be hostile to your relationship and your partner.

Even for married couples, a healthcare proxy is important because it specifies your values, your wishes, and your preferences for care in situations your spouse might not know how to handle alone. Sign this document. Keep a copy accessible. Your partner should carry a copy.

Durable Power of Attorney

If you're incapacitated and unmarried, your partner has zero legal authority to manage your finances without a POA. Your bank will turn them away. Your landlord won't talk to them about your lease. Your employer won't release your paycheck. A durable power of attorney names your partner as your agent and gives them that authority.

Even for married couples, a POA provides clearer, more explicit authority than the default spousal rights in many situations. Some financial institutions still require a formal POA before accepting instructions from a spouse who isn't on the account.

HIPAA Authorization

This document authorizes your healthcare providers to share your medical information with specific people. Without it, doctors and hospitals may refuse to discuss your condition with your partner — even if you're married. A HIPAA authorization, combined with your healthcare proxy, ensures your partner has access to all information they need to make decisions for you.

Children and Adoption: Protecting Your Family Legally

For LGBTQ+ couples with children, the legal relationship between each parent and each child is critical to address explicitly.

Second-Parent and Step-Parent Adoption

In New York, a same-sex couple where one parent is the biological or adoptive parent and the other is not can complete a second-parent adoption (or step-parent adoption if married). This legally establishes both parents as the child's legal parents.

Why does this matter for estate planning?

• If the legal parent dies first, the non-legal parent has no automatic custody rights without a court proceeding — even if they've been co-parenting for years
• The child's intestate inheritance rights from each parent depend on the legal parent-child relationship being established
• If the non-legal parent becomes incapacitated, their children may not have the right to access their estate to meet daily needs

If you have children and both parents aren't legally established as parents, complete second-parent or step-parent adoption as soon as possible. This is not optional planning — it's the foundation everything else rests on.

Guardianship Provisions in Your Will

Both parents' wills should name the surviving parent as guardian and each other as successors. This provides redundant legal protection for your children's care. Also name backup guardians outside your partnership in case both of you die simultaneously.

Consider who those backup guardians are carefully. If you have family members who have been hostile to your relationship or your children, you may want to explicitly exclude them as guardians — or add a letter of instruction explaining your values and wishes for your children's upbringing.

Dealing with Hostile Families: Using Your Estate Plan Defensively

Some LGBTQ+ clients come to us specifically because their families of origin are hostile to their relationships. Parents who've disowned them. Siblings who won't acknowledge their partner. Extended family who would challenge anything that benefits a same-sex spouse or partner.

A few strategies that address this directly:

No-Contest Clauses

A no-contest clause (in terrorem clause) in your will says that any beneficiary who challenges the will forfeits their inheritance. New York courts enforce these under EPTL 3-3.5 when there's no probable cause for the challenge. If a family member who stands to inherit something challenges your will anyway, they risk losing their inheritance entirely.

The key: the challenging party has to have something to lose. If you've disinherited someone completely, a no-contest clause doesn't deter them because there's nothing to forfeit. Sometimes leaving a small bequest to a potentially hostile family member — enough that the no-contest clause has teeth — is actually strategically wise.

Trusts Instead of Direct Bequests

Trust assets are private. They pass outside probate. There's no public filing that says "I left everything to my partner." A disgruntled family member may not even know what the trust holds. This doesn't eliminate the risk of a challenge, but it reduces the opportunity significantly.

Clear Documentation of Intent

Courts take intent seriously. A letter accompanying your will that explains, in your own words, your relationship with your partner, your family situation, and why you've made the choices you've made — kept on file with your attorney — can be powerful evidence against a claim of undue influence or incapacity.

The key: this letter must be current, clearly authored by you, and not in conflict with your legal documents. Have your attorney advise you on how to draft it appropriately.

Tax Planning for LGBTQ+ Married Couples

Married same-sex couples benefit from the same federal estate tax tools as any married couple. The unlimited marital deduction means that assets passing to a surviving spouse — regardless of amount — are not subject to federal estate tax at the first death. The estate tax is deferred until the second death.

For high-net-worth couples, this means the same planning strategies apply: AB trusts (now less common after federal exemption portability), marital trusts, QTIP trusts, and portability elections. Your estate planning attorney should address these if your combined estate exceeds $7 million (New York's 2026 exemption) or $14 million (the combined federal exemption).

For more on how New York's estate tax affects your planning, see our guide to estate planning and taxes in New York.

Planning for Couples with Property in Multiple States

Some LGBTQ+ New York couples own property in states where the legal climate around same-sex relationships is uncertain. A vacation home in a state with anti-LGBTQ+ legislation. A family farm in a state where a hostile judge might treat your marriage differently.

Property in another state passes according to that state's law. If you own real estate in a state where your rights might not be fully recognized, consider whether transferring that property into a revocable living trust — governed by New York law — is appropriate. Trust property avoids the local ancillary probate process and may provide greater protection.

This is complex territory that requires coordination with an attorney admitted in both states. Get specific advice for your situation.

The Complete LGBTQ+ Estate Planning Checklist

1. Both partners execute independent wills naming each other as primary beneficiary and executor.
2. Both partners execute healthcare proxies naming each other as primary agent, with non-hostile family members as backup if possible.
3. Both partners execute durable powers of attorney naming each other as agent.
4. Both partners execute HIPAA authorizations authorizing each other's access to medical information.
5. Both partners execute living wills documenting their end-of-life care wishes.
6. Consider a revocable living trust for privacy, probate avoidance, and protection against family challenges.
7. Complete second-parent adoption for any children where both parents aren't legally established.
8. Update beneficiary designations on all retirement accounts, life insurance, and financial accounts.
9. Review title on jointly held property — does it reflect joint tenancy with right of survivorship?
10. Consider a no-contest clause and document your intent clearly.
11. Review your plan every 3 to 5 years or after any major life change.

Finding the Right Attorney

Not all estate planning attorneys have the same experience or sensitivity to LGBTQ+ family structures. Look for an attorney who:

• Has specific experience with LGBTQ+ clients and understands their unique concerns
• Is knowledgeable about adoption law as well as estate planning
• Understands the defensive strategies available when family hostility is a concern
• Treats your family structure with the same seriousness and respect as any other family

For additional resources on LGBTQ+ estate planning in New York, visit morganlegalny.com/estate-planning/.