Will Drafting and Estate Planning
for NYC Families

At Expand Law, we are committed to protecting the rights and intentions of the LGBTQ+ community through efficient and effective estate planning and will drafting.

We provide services including will drafting and review, living wills, probate, spousal right of election, and guardianship nominations for all families.

Specifically as relates to queer or LGBTQ+ families, there may be additional protections you would like in place, specifically if there are assets located in states that would not recognize same-sex marriage if not for federal recognition under Obergefell. 

We work with couples, single parents, and polyamorous family structures to design an estate plan that honors the life you have lived and ensures that your people are taken care of.  You want to make sure that you are not leaving your loved ones without options or with a lot of headache—Lindsey Rubinstein at Expand Law can help you make that happen.

Providing for Children as Queer Parents

Even after same-sex marriage was legalized under federal law, there remained issues that LGBTQ+ families faced, particularly regarding what might happen if they reside in one state that is friendly to queer families and have assets, debts, or other personal belongings or property located in a state that is not.

Asset transfer is an important issue for this reason.  Your estate needs to be arranged so that property transfers, healthcare, and other matters can pass to your loved ones after death, or to your children, including if you went through the process of adoption.

Proper estate planning to care for your family or children as an LGBTQ+ person can:

• Ensure you and your family receive all the state and federal marriage benefits and avoid going through the process of probate;

• Decisively establish that your partner has the rights to make healthcare decisions on your behalf;

• Protect a partner’s rights to inherit assets and avoid excessive taxation where possible;

• Establish a living trust and nominate a partner as a trustee in the event of illness or accident;

• Have the peace of mind to know that assets will be distributed according to their personal obligations and desires; and

• Nominate a guardian to care for and raise children in the event of illness, accident or death.

FAQ: 

Do I Need a Will, or Does the Law Decide How My Assets Are Divided?

In New York, there are certain laws that automatically designate who will receive rights to your assets and the value of your estate in the event of death.  Typically, a person’s spouse, children, and other immediate family members are automatically designated to receive all or a portion of the deceased person’s belongings and assets, and to settle any outstanding debts.

However, many people and families, including queer or non-monogamous families, develop structures that the law does not anticipate, such as the existence of other partners or chosen family.  Under the law, unmarried partners are not included as next of kin, and not entitled to inherit assets from the deceased person’s estate.  LGBTQ+ people may also have certain family members who are interested in attempting to disinherit partners due to lack of acceptance of the deceased person’s queerness.

To ensure that all of your loved ones are protected, it is advisable to create a will that distributes your assets in a way that reflects who you would like to benefit from your estate.

Additionally, transgender people face specific issues as relates to estate planning, which may involve the resolution of varying name, gender, and identity markers on official documents, insurance, and healthcare.

Finally, if you do not have proper estate planning in place, your loved ones may go through the probate process, which is public.  Having solid documents in place ensures privacy in the distribution of your estate.

How Do I Update an Existing Will?

Even if you have an existing valid will, sometimes things happen in life that require those plans to change.  For example, you may have a child after the finalization of a valid will, or you may change your name or inherit a certain asset.

In many cases, a simple document called a “codicil” is enough to change a will.  A codicil is executed with the same formalities as a will and is stored with the original will.  It can provide for minor changes, like referring to you and identifying a prior name, or changing the beneficiary of some assets.

However, if you want to make large-scale changes to a will, it is best practice to sign and execute a “revocation” of a prior will, and then finalize a new document that reflects your updated identity, family structure, or plans.

Do I Need a New Will After a Legal Name Change?

Typically you do not need to create a new will after a legal name change.

However, there are certain best practices when it comes to updating your estate planning documents after legal name change.

For example, it is highly advisable to create a codicil, discussed above, that clearly states your current name and former name, and to keep the codicil with the original will wherever it is stored.

You should also consider including the document finalizing your name change with your will to minimize confusion and time spent verifying your identity.  Remember as well to change your name on official documents, bank accounts, retirement account records, and other financial accounts and paperwork.

Can I Choose Who Will Care for My Child After Death?

In New York, the general law is that there is an automatic preference for biological relatives to assume responsibility for caring for surviving children, and this is true even over a non-biological or non-adoptive parent.

However, if you have elected to have a child with another intended parent using a donor, surrogacy, or Assisted Reproductive Technology (ART), or if you are the single parent of a child, proper estate planning can designate your co-parent(s) or other members of your chosen family as the preferred caretaker for your child.

A written nomination in a will tells the judge your exact wishes, which courts consider heavily in determining the best interest of the child in the event of the death of a parent.

It is important to note that while a guardianship nomination in a will is a powerful provision, it does not provide absolute certainty for what a judge will decide.  The only way to be absolutely sure that your child will remain with a surviving parent is to go through the process of a second-parent adoption.

Creating a Valid Will in New York State

Lindsey Rubinstein and Expand Law can help you create a will with the peace of mind that it complies with all New York State rules, including:

• That the will is written clearly, with nothing in the margins;

• That it contains all the necessary and proper declarations, including that you understand that this document is your will;

• That it includes a statement that you are of sound mind;

• That it clearly states how you want your property distributed after death;

• That it names a proper executor and all desired beneficiaries;

• That it appoints a guardian for children, if applicable;

• That it is signed before two proper witnesses;

• That it contains a self-proving affidavit, if applicable;

• That no provisions appear after the signature; and

• That it is printed, stapled, and stored in a safe, accessible location that will be easy to obtain after death.

Providing for Loved Ones Outside the Legal Family Structure 

As with nuptial agreements, wills are affected by the fact that the law only recognizes one person as a married spouse.

If you are in a non-monogamous or polyamorous family, you may worry that loved ones will not be protected under the law in the event of death.

Working with an experienced and compassionate attorney like Lindsey Rubinstein can help alleviate these concerns.

Wills are all about drafting.  In your will, you can explicitly name your loved ones, partner(s), and chosen family as beneficiaries of your estate to ensure that they receive assets, property, or specific sentimental items.

You may also consider setting up a trust to manage and distribute property or financial support among multiple partners over time, or updating life insurance policies, bank accounts, and retirement accounts to reflect these beneficiary designations.

Specifically if you are in a non-monogamous marriage, it is important to consider creating a valid will; otherwise, under the law, the legally recognized spouse is likely to receive a designation of most or all of your property, which may result in dispossessing other family members or partners.