Estate Planning Essentials For LGBTQ Couples

There are some important issues that same-sex couples should consider…
 
By Fraser Abe
 
Even though same-sex marriage has been legally approved in Canada for 14 years (it was legalized in 2005), many LGBT couples opt not to get married. Some feel it is heteronormative; some feel it’s too expensive; others feel it’s an outdated tradition. But whatever the reasoning, couples that have been together for a long time and decide not to get married still need to have financial and estate plans in place. Yeah, we know – short of discussing the political landscape with Uncle “All millennials are snowflakes” John at Christmas dinner, there’s no conversation more dreaded than finances and estate planning. Still, here are some reasons it is worth talking about.
 
If you and your partner live in Toronto or any of the country’s major metropolitan areas and are fortunate enough to be able to buy a home together – through determination, sheer force of will or (perhaps more realistically these days) a lottery win – estate planning is particularly important. Without this, if a couple isn’t legally married, the home won’t necessarily pass to the surviving partner upon death. Some instances in which that might come up: the home was already owned by one partner, only one person’s name is on the deed (a tactic often taken when one member of the couple has a poorer credit rating), or one partner’s parents helped pay for the home and are listed as co-owners. That’s why it’s important to have a will drawn up that states clearly who gets what when someone passes.
 
A living will outlines a person’s wishes if they ever find themselves incapacitated and unable to make life decisions. Having such a document will help anyone, but especially LGBT couples who have unaccepting families. The 2013 documentary Bridegroom tells the story of Shane Bitney Crone and his partner, Thomas Lee Bridegroom, and what ensued after Bridegroom died in a tragic accident. Being young, neither thought anything would happen to them, but in the aftermath of Bridegroom’s death, Crone faced many struggles, including being barred by his partner’s family from attending his funeral.
 
If you’re travelling, bring along some form of documentation of your relationship (like a living will), in case you find yourself in a hospital that will only deal with “family.” That living will could do just as much good in Canada, if a partner experiences some traumatic injury and the hospital will only deal with “family.” If the partner’s birth family is unaccepting of their child’s sexuality or gender identity, it may be up to the able partner to act as the other’s advocate in the hospital (against, say, misgendering, forced feeding, or anything else the not-so-well-intentioned “family” may impose), and doing it on legal grounds will make the whole endeavour much easier.
 
If one partner has any sizable assets in a TFSA, RRSP or other investment vehicle, the proceeds will not necessarily pass to their surviving spouse unless that has been specifically stated to be the wish. Again, this is where having a will would be useful, but failing that, naming your partner as beneficiary would be a positive step. This is something to consider especially when the individual has held the account for much longer than they’ve known their partner (say someone started an RRSP at 20 but met their partner at 30), and the beneficiary has been unchanged in ages (often a parent). Non-registered accounts cannot have beneficiaries named unless they are part of an insurance product, so a regular savings account will pass through to an estate unless otherwise specified in a will.
 
The only two things that are certain in life are said to be death and taxes, so why not talk about them both at once and kill two birds with one stone? In Canada, Old Age Security and Canada Pension Plan benefits are extended to same-sex couples (and even common-law couples), but if you file taxes as roommates, or don’t have a will in place, it may be hard to prove that those benefits should go to your spouse. And, like everything else involving the government, you’ll have to do the paperwork (https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=ISP3004CPP).  If one partner is a high earner and the other isn’t, that income could be of great importance – CPP alone could be 60 per cent of the contributor’s retirement pension if over the age of 65, according to Canada.ca. The site also says, “The enhancement will further increase the amount of the survivor’s pension depending on how much and for how long the deceased contributor paid into the enhancement.”
 
Many same-sex couples have children, whether from a previous relationship, adoption, surrogacy or some other method. In Canada, the same rights apply to same-sex couples as heterosexual ones, so if a couple opts to remain common law, the same rules also apply. This means that, for example, if a couple is legally deemed to be co-parents (say both names are on a birth certificate), child support payments will apply if the couple separates. Visitation rights are another thing to think about in the event of a breakup. And don’t forget about things like RESPs (registered education savings plans) for the little ones!
 
Planning for the un-fun parts of life is never fun, but it’s certainly much better than being blindsided while also undergoing grief. Make sure to have these conversations now and to visit a lawyer to draft up a will. Even if you think you don’t need one, it is worthwhile to go for a brief consultation.
 
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FRASER ABE is a Toronto-based writer. His work has been published in Toronto Life, The Globe and Mail, Sharp Magazine, NOW Magazine and more. When he’s not busy writing, he’s shrieking Gia Gunn quotes at his boyfriend, Colin.