Families, relationships, and health care needs come in all shapes and sizes, but unfortunately, they are not all treated the same by Canadian law. When making financial plans and estate plans, every person should consider their unique situation to make sure that they and their loved ones are protected.
Although not exhaustive, Willful has compiled a list of estate planning considerations for members of the 2SLGBTQIA+* community.
What estate planning considerations exist for members of the 2SLGBTQIA+ community?
In this article we will outline some estate planning considerations for the 2SLGBTQIA+ community, focusing on the following five topics:
- Marital and relationship statuses
- Making decisions related to health care
- Protecting biological, adopted, and shared children
- Maintaining confidentiality and control over estate plans
- Keeping your lived identity after death
These are important considerations for anyone, regardless of their identity, but we have highlighted some of the aspects that can be more relevant to members of the community.
Is a lawyer needed to create estate plans for members of the 2SLGBTQIA+ community?
That can depend on your situation and your needs!
There are some universal requirements that make a will legal. For example, to make a will legal and binding in Canada, it must be signed by two witnesses.
For members of the 2SLGBTQIA+ community, lawyers do not need to create or review an estate plan for it to be legal. As long as it follows the requirements to make a will legal in Canada, it will be valid.
However, a lawyer may be able to help consider various scenarios and potential challenges that can arise after death, such as disputes over the estate or disagreements from family members.
In general, pursuing the estate planning path that is most comfortable is best. The most important thing is that every Canadian has a will, period. The way that the will is created can vary.
1. Marital status: naming a partner or spouse in a will
Understanding how marital status affects a will is an important part of estate planning, because it can impact the distribution of an estate.
According to the 2021 Canadian census, marriage is the most common type of union for adult couples in Canada, with 77% of couples married.
In comparison, the Government of Canada indicates that only one third of same-gender couples are married. Therefore, it’s especially important for members of the community to understand the differences in marital status.
Does Canada treat legal spouses, common-law partners, and civil unions the same?
In Canada, estate planning laws are mostly regulated at the provincial and territorial levels, which means that there are differences in how these relationships are recognized and treated across the country.
In general, legal spouses are given the most amount of protection in estate planning.
Legal spouses
When you die without a will, you’ve died intestate and your estate will be distributed to your next of kin by the government using provincial laws. If you have a legal spouse, that means they will typically receive your estate.
Even though legal spouses are given certain rights and protections in estate planning, it’s still best to have a will and to name your spouse. This makes sure that there is no confusion for other family members and your exact wishes can be honoured.
Same-gender marriage in Canada
Same-gender marriage is legal across Canada, and therefore same-gender spouses and 2SLGBTQIA+ couples that are legally married are given the same protections that opposite-gender spouses are given through Canada law.
Common-law partnerships
According to the Government of Canada, two thirds of all same-gender adult couples are living common-law. So, it’s important to understand the difference between a legal spouse and a common-law partner.
To make things complicated, common law relationships are treated differently by province. Some provinces recognize common-law partners as having similar rights to married spouses, while others have specific requirements, such as a minimum duration of cohabitation, before these rights are granted. You can read more about common law status by province here.
Civil unions
In Quebec, a couple can choose to form a civil union. Unlike a common-law partnership, a civil union is more similar to a legal marriage, as the legal framework for civil unions is identical to the framework for marriage. To learn more about civil unions visit the Chambre des notaires du Québec.
Naming a spouse or partner as the beneficiary of property and assets
The best way to protect a partner is to create a will and name them as a beneficiary. Not only will this save them from having to submit a claim after you pass or deal with other complexities, it will give them peace of mind knowing that they are protected.
2. Healthcare decision-making: identifying who can make medical decisions
A second important aspect of estate planning is identifying who can make healthcare decisions on an individual’s behalf, if they are unable to make the decisions themselves. This is accomplished through a power of attorney for healthcare.
What is a power of attorney for healthcare?
A power of attorney is a legal document that gives an individual the right to make financial or medical decisions on someone else's behalf.
The person appointed in a power of attorney for healthcare helps make healthcare decisions for an individual, in the event they are unable to do so themselves. You may also see this document called a representation agreement, personal directive, or advanced directive, as the terminology varies across Canada.
Healthcare considerations for transgender, gender diverse, and non-binary individuals
The population of transgender, gender-diverse and non-binary individuals within Canada has become more visible and recognized in recent years, however they still face significant barriers in their daily lives–especially in the context of accessibility and adequacy of health care.
So in these cases, it’s essential that the power of attorney for healthcare deeply understands the individual’s lived identity, their unique healthcare needs, and the barriers that the individual has and will face when receiving treatment.
Although it differs by province, without a power of attorney a family member or friend would likely need to apply to become your court-appointed guardian. So in a common law partnership, for example, the power of attorney would not automatically be given to the common law partner. It could be given to a family member or parent, which may not be preferable.
How to choose a power of attorney for healthcare
When choosing a power of attorney for healthcare, it’s most important to consider the following:
- Choose someone comfortable with the responsibility
- Choose someone you trust and who values and agrees with your wishes
- Choose someone who is legally able to be your attorney
- Review your power of attorney regularly
Who should be notified about power of attorney decisions
Being a power of attorney can be a stressful role and the person selected is able to decline, so the role should be discussed with them first. Once they have agreed, the named attorney will be indicated in the power of attorney forms. Similar to the requirements for witnessing a will, power of attorney documents also need to be witnessed to be considered legal.
3. Protecting children: choosing a guardian
A third important consideration in estate planning is choosing a guardian for children. A guardian is a person or people (typically a couple) who will take care of a child/children if their parent(s) pass away.
Are there differences in estate planning for biological, adopted, and shared children?
If a parent passes and is survived by biological children, the other natural parent, if they are living, will typically get custody of the child/children. However, things can get more complicated when there are adopted or shared children, especially if the guardianship of the surviving parent was not made legal before the other parent’s passing.
Blended family structures are increasingly common. The 2021 Canadian census indicates that stepfamilies are more prevalent in same-gender, transgender, and non-binary couples than with opposite-gender couples.
Additionally, in almost three quarters of stepfamilies composed of same-gender, transgender, or non-binary couples, the children in the family are the biological or adopted children of only one of the spouses or partners in the couple.
These statistics emphasize the importance for 2SLGBTQIA+ families to make sure their children are protected and cared for in the event of the unexpected. We recommend updating wills, appointing guardians and custodians, and amending lists of beneficiaries as soon as a child is born or adopted.
Failing to choose guardians and custodians will result in the courts deciding who will care for children, and it may not be the person who was acting in a parental role to the child, or a person that the deceased parent would have chosen themselves.
How to choose a guardian for children
When choosing a guardian for children, there are several steps to follow:
- Determine what’s important to you, and discuss this with a partner or spouse
- Consider who meets the criteria you’ve identified, and who could be a candidate for guardianship
- Discuss with any chosen guardian and any backup guardians
- Formalize it in a will
Choosing a guardian for children is an extremely important decision, so to read more about this topic, see our article "How To Choose A Guardian For Your Children in Your Will".
What happens to frozen eggs and sperm when you die?
The conversation around reproductive assets has become more prevalent in recent years, but many people don’t know what happens to them after someone passes.
In general, a spouse or common law partner would be able to use stored sperm or eggs after their partner’s death, but only if they have their partner’s written consent.
Without written consent, the spouse of a common-law partner is probably unable to conceive using their partner’s sperm or eggs.
To learn more about reproductive assets and how you can protect them in your will, read our article “What Happens To Frozen Eggs And Sperm When You Die?”
4. Confidentiality: maintaining control of estate plans
If an individual expects that their estate plans may cause conflict or disagreement among family members or friends, they can be kept confidential.
It is still important to notify the individuals that have been named for roles like executor or power of attorney, however it is the decision of the testator who else they choose to share their plans with.
It’s also important to make sure that loved ones know how and where to access estate plans, if the unexpected were to occur. To maximize confidentiality, this could be achieved by providing your will and power of attorney to a lawyer, and having them keep it on your behalf.
You can read more about what an executor needs to disclose after you pass in our article, “What Does an Executor Have to Disclose to Beneficiaries?”
How to make sure your unique wishes are honoured
Members of the community can face disagreement from family members when it comes to their lived identity, and it is important to make sure that their wishes are upheld after they pass. Transgender individuals, for instance, may be particularly concerned with the potential erasure of their identity after death.
Making complete estate plans can mitigate these risks and provide the testator the opportunity to document their funeral and memorial wishes.
5. Identity: keeping your identity after death
Some members of the 2SLGBTQIA+ community live by one name, but have a different name on their government-issued ID or were born with a different name. For some individuals and their families, this can cause conflict and disagreement. So, it’s important for these individuals to prepare their estate plans so that their lived identity can be retained after death.
What name to use on a will and power of attorney document
In general, individuals should use the name and personal information on their government-issued ID in their estate plans. However, in the event the individual’s lived name and identity does not match their ID, it is best to speak with a lawyer who can advise how best to complete their estate planning documents.
Choosing an executor to maintain gender identity after death
Choosing an executor that understands and values an individual’s lived identity is another way to mitigate the risk of a gender identity being erased or compromised after death.
There are several important considerations when choosing an executor, including choosing someone who:
- is comfortable with the responsibility
- is likely to be be available to complete the duties
- is trusted, ethical, and who holds the same values
- is likely to be alive
Choosing an executor is another very important decision in estate planning, so to read more visit our article “What Is An Executor Of A Will? Everything You Need To Know”.
The considerations in this article may or may not apply to every individual, however we believe that they are worth evaluating when creating a will and power of attorney.
If you’re ready to create your will, you can get started for free with Willful. It only takes 20 minutes, from start to finish, and you’ll receive a legally-valid will that reflects your true wishes.
*A note about our chosen acronym:
At Willful, we have chosen to use the acronym “2SLGBTQIA+” to represent as broadly as possible a diverse group of unique people with respect to sexual orientation, gender identities and expressions. The “+” is meant to be inclusive of other people who identify as a sexual or gender minority.
We recognize that this terminology is continuously evolving. As a result, it is important to note that this acronym and this article is not exhaustive and is only a starting point to understanding 2SLGBTQIA+ identities and issues.
