Protecting Your LGBTQIA+ Family: An Estate Planning Guide for Non-Biological Parents

As an LGBTQIA+ non-biological parent, June sparks a flurry of Pride celebrations reminding you of the remarkable progress the community has made, while also shining a light on the ongoing fight for full equality. One area where you may still face unique legal hurdles is in ensuring your parental rights are properly protected, if you are a non-biological parent. Marriage may not be enough, but marriage in conjunction with estate planning gives you the maximum peace of mind.

This Pride Month, take the time to safeguard your family's future by putting the proper legal protections in place for yourself and the people you love. You worked hard to build this life —don't let lack of planning put it all at risk. In this article, I’ll address some key actions to take so you’re empowered to advocate for your rights as an LGBTQIA+ non-biological parent.

As a non-biological parent, your first priority is to ensure you are recognized as the legal parent of your child or children. This may seem like a given, but the laws around legal parentage can vary significantly between states and get tricky for LGBTQIA+ families.

For example, imagine your partner gives birth to a child through donor insemination, and you are not the biological parent. In many states, you would not automatically be considered a legal parent to that child—even if you're married. The same applies to same-gender couples who have a child through surrogacy or adopt a child.

Without taking additional steps like a second-parent adoption or other legal processes, you could face an uphill battle asserting your parental rights and decision-making authority about the child's care, education, and other crucial matters. This is the case even if you are co-parenting a child with your partner or spouse who is the biological parent of the child. It may sound extreme, but there are cases of non-legal LGBTQIA+ parents being denied the ability to make medical decisions for their own child or facing obstacles traveling across state lines together.

Build your family’s foundation on a rock, not sand. No matter how your child came into your lives, be sure to take the proper legal steps to ensure you have equal legal standing and rights as a parent, from day one.

Beyond solidifying legal parentage, you need other legal documents in place to protect your role as a non-biological parent:

Medical Consent Forms. These forms explicitly authorize you to make medical decisions for your children in any situation. Without them, a hospital could potentially deny you the ability to consent to a life-saving procedure, if your legal status is called into question.

Parenting Agreement. If you're not legally married to your co-parent, a formal parenting agreement is absolutely critical. This document outlines both party's intentions, roles, responsibilities, and legal rights/expectations for raising the child. It can dictate factors like living arrangements, decision-making powers, financial obligations and more.

Without this agreement, a bitter break-up or disagreement could put your relationship with your child in legal jeopardy, especially if there isn’t an obvious framework for who has custodial rights. A thoroughly drafted parenting agreement acts as your concrete evidence of the intended family structure.

Wills and Guardianship. If the unthinkable happens and you (or your parenting partner) were to pass away, your children's guardianship could potentially get caught up in legal battles with blood relatives who may not respect your family situation. The same goes for an unmarried co-parenting situation where your child's other parent may not have automatic guardianship rights. Anytime you go to court, the potential for conflict increases exponentially. So do expenses. It’s always best to avoid the court process if at all possible (and here, it’s possible!).

This makes it absolutely imperative to explicitly document your choice of legal guardians for your children in case you are incapacitated or pass away. A Kid’s Protection Plan, where you nominate guardians for your children, exclude anyone you wouldn’t want, say what happens if they’re with a babysitter and you’re in an unforeseeable accident, prevents family you’d never want raising them from doing so, and ensures they’re never taken into the care of strangers, can not only help prevent ugly custody battles, but also make sure your kids are provided the love and stability they deserve.

As an LGBTQIA+ parents, these provisions are the way to reinforce your intentions and values about who should care for your children in keeping with the family structure you created. Don't leave it up to a judge's interpretation, who knows nothing about you and your children. Think about it: a judge is a complete stranger. Do you really want a complete stranger deciding what happens to your kids if you were no longer here? Of course not! So take action while you can, and if you are the non-biological parent in relationship with the biological parent, and without clear legal parentage, it’s even more critical - make sure your child’s biological parent has a Kids Protection Plan in place.

Beyond legal documentation, it's just as important to fortify your family with trusted allies and support networks who can advocate for your rights if they are ever challenged.

Look into connecting with local or national LGBTQIA+ family organizations and online communities where you can share advice and learn from others facing similar barriers. Groups like COLAGE (Children of Lesbians and Gays Everywhere) provide helpful resources.

You should also identify LGBTQIA+ friendly legal advisors, who will take a heart-centered approach to estate planning, and who really, really cares about your family. As a Personal Family Lawyer®, our firm will set you up with solid legal protections, and also be there for you and your family, anytime you need legal support in the future.

At the end of the day, the sad reality is that despite how far LGBTQIA+ rights have come, you may still face prejudiced individuals or institutions that try to undermine the legal protections you put in place. Having a solid support system in your corner could make all the difference.

As an LGBTQIA+ parent, you may have had to overcome many hurdles simply to become a parent to your child or children. Now it's time to ensure you can leave the lasting legacy you envision for them.

With a comprehensive estate plan that works when you and your loved ones need it to, you can capture the immense love, sacrifice and life lessons that went into creating and nurturing your family unit. You can memorialize the values, heritage and core principles you hope to impart on your children and can outline cherished ceremonial traditions you want carried on at important milestones.

We don’t just draft estate planning documents for you, but with our Life & Legacy Planning process, we ensure we create a plan that works for you when your family needs it, and that plan is maintained and updated over time. As a result, nothing that matters is lost, and you won’t leave a mess for the people you love.

On top of that, we don’t just ensure you pass on your money, but the intangible assets that truly matter to the people you love. During our Life & Legacy Planning process, we’ll record you speaking about what matters most for the people you love, creating a family heirloom that will be passed on for generations.

Estate planning is not just about legal formalities, but ensuring your lifetime of efforts to create your family leaves a proud, enduring legacy for generations to come. With the proper guidance, you can celebrate future Pride events confident your journey won't be derailed by preventable legal oversights. The peace of mind of knowing you've shored up your family's legal standing is one of the greatest acts of love you can provide. It’s not only a gift of love for your children, but a gift of love to yourself.

Even in 2024, the road to equality and respect is an ongoing battle for LGBTQIA+ parents and families. But you don't have to figure it out alone. This Pride Month, connect with us so we can empower you to protect your family structure and parental rights through comprehensive estate planning.

We understand that protecting your family goes far beyond just legal documentation. Our mission is to empower you to enshrine your hopes, values and profound love for your children into a comprehensive plan that preserves your family's integrity for generations to come. We take the time to truly understand what family unity means to you—the struggles you overcame, the values you hold dear, the future you envision. And then we help you craft a tailored estate plan that meets your needs.

This Pride Month, give yourself and your children the greatest gift: a lasting celebration of your family's identity, equality and unbreakable bonds. Schedule a complimentary 15-minute call with our office to learn more.

Contact us today to get started.

This article is a service of Debbie Babb Law. We don’t just draft documents. We ensure you make informed and empowered decisions about life and death, for yourself and the people you love.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.