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Gay and Lesbian Elders: Estate Planning and End-of-Life Decision Making

Florida Coastal Law Review, Vol. 11, 2010

Temple University Legal Studies Research Paper No. 2011-6

55 Pages Posted: 6 Aug 2010 Last revised: 21 Mar 2011

Nancy J. Knauer

Temple University - James E. Beasley School of Law

Date Written: August 2, 2010

Abstract

At a time when gay men and lesbians enjoy an unprecedented degree of acceptance, many gay and lesbian elders are facing the challenges of aging in silence, isolated from the gay and lesbian community and ignored by the senior community. They are grappling with the legal fragility of their chosen families, financial insecurity, and the fear of encountering antigay bias in senior-specific venues. Significant legal and policy reform will be necessary to address these concerns, but, in the meantime, there are certain planning steps that gay and lesbian elders can take to protect their chosen families and themselves. These include a will, inter vivos trust, a durable power of attorney, an advance medical directive, burial instructions, and an integrated elder care plan.

This Article addresses the three areas of core concern for gay and lesbian elders - chosen family, financial insecurity, and anti-gay bias in the context of estate planning. The first section provides an overview of the current generation of gay and lesbian elders, including a summary of pre-Stonewall history and existing demographic information. The second section outlines the challenges associated with drafting an estate plan that favors chosen family over next of kin. The third section engages the topic of financial insecurity, discussing various benefits and government programs, such as social security and Medicaid planning. The fourth and final section discusses why an integrated elder care plan is an essential component of estate planning for gay and lesbian elders and how anti-gay bias and homophobia can threaten to 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 because significant legal and policy reform will be necessary to ensure equity and dignity in aging regardless of sexual orientation.

Keywords: Gay and Lesbian Elders, LGBT elders, gay seniors, LGBT seniors, estate planning, undue influence, will challenges, culture wars, DOMA, same sex marriage, marriage equality, chosen family, fictive kin, lack of capacity, Stonewall Riots, history of homosexuality, LGBT history, funeral agent

Suggested Citation

Knauer, Nancy J., Gay and Lesbian Elders: Estate Planning and End-of-Life Decision Making (August 2, 2010). Florida Coastal Law Review, Vol. 11, 2010; Temple University Legal Studies Research Paper No. 2011-6. Available at SSRN: https://ssrn.com/abstract=1652339

Nancy J. Knauer (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-1688 (Phone)
215-204-1185 (Fax)

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