FAQ: Wills & Testamentary Trusts for Lesbians and Gays

Why Should I Execute A Will?

Clearly, a Last Will & Testament (or simply “Will”) is not exclusively designed to protect lesbian and gay couples. Any person who owns any real estate (real property) or personal property that they wish to see pass to the person(s) of their choosing upon death should execute a Will. If you die intestate (without a Will), your real estate and personal property will pass to your biological family according to the probate statutes in effect at the time of your death, if you and your partner have not entered into a marriage or civil union. In other words, without a Will, you will have no control over who inherits your estate.

If you wish to have your partner or spouse (or another trusted individual) have control over your estate upon your death, you must appoint an executor in your Will.

Suppose you own the home that you and your same-sex partner currently reside in but your partner’s name is not on the deed (title) to the property. In other words, your partner does not have any ownership rights to your home. If you die without a Will, your home will NOT automatically be passed to your partner (absent a marriage or civil union). In fact, your biological heirs will have the legal right to ask your partner to leave that home. Not so, if you execute a Will leaving your interest in the home to your partner, or granting your partner a “life use” of the home.

If you have minor children, executing a Will allows you to direct how they will be taken care of if you should die before they reach the age of majority. You may name a guardian for your children and/or direct that they are financially provided for through a testamentary trust.

If you own personal property such as jewelry or antiques — or if you simply own items of sentimental value that you wish to leave to specific individuals — you should execute a Will in order to direct who will inherit those items upon your death.

What if I die Without a Will (intestate)?

If a person (decedent) dies without a Will, the probate court has jurisdiction to grant the right to someone to administer the estate. Connecticut lists those to whom such a right can be granted. They include:

• The surviving spouse,
• any child of the decedent or any guardian of such child as the court shall determine,
• any grandchild of the decedent or any guardian of such grandchild as the court shall determine,
• the decedent’s parents,
• any brother or sister of the decedent,
• the next of kin entitled to share in the estate.

The statute does not make provisions for the partner of the decedent to serve as administrator of the estate, even if there are no surviving next of kin (listed above).

Testamentary Trusts

A Testamentary Trust can be an effective and efficient way to provide for your minor children — or other loved ones who are unable to care for themselves –after your death. The language for the Testamentary Trust is included in your Last Will and Testament and the actual Trust is created upon your death. You may change the terms of a Testamentary Trust at any moment during your lifetime; in fact, you may even choose to remove it from your Will. However, upon your death, a Testamentary Trust becomes irrevocable.

A Testamentary Trust may be drafted in many different ways. For example, if you have young children, you might direct that upon your death (assuming your spouse or life partner is also deceased) your home and personal property are sold and the proceeds shall go into the Trust to benefit your minor children. You name a person you trust implicitly to manage the funds in that Trust. In this way, your children’s needs are taken care of financially.

Another possibility is to draft a Testamentary Trust to benefit a sibling, for example, who has a mental illness or who is a hard-core substance abuser. Leaving your money or property outright to that sibling would be counter-productive due to their inability to properly manage funds. Instead, you would name a person to serve as Trustee and that person would manage the funds that would provide proper care for your sibling.

Testamentary Trusts may be as simple or as complex as your personal needs and circumstances warrant.