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Understanding the Unique Challenges for Ohio’s LGBTQ+ Community: Wills, Trusts, and Beneficiary Designations (LGBT Blog Series Part 2)

Kelly Parks • December 20, 2024

Estate planning tools like wills, trusts, and beneficiary designations are vital for LGBTQ+ individuals and couples, particularly those in Ohio who may face unique legal challenges. Properly executed, these tools help ensure that assets are distributed according to an individual’s wishes, minimize potential conflicts with family, and provide legal protections for partners and chosen family members.

Creating a Will


A will is the foundation of any estate plan, and for LGBTQ+ individuals, it is one of the most critical documents to have. Without a legally binding will, the State of Ohio will distribute assets according to its intestacy laws, which typically prioritize biological relatives (O.R.C. §2105.06). This can be problematic for LGBTQ+ individuals who may want their assets to go to a non-biological partner or friend rather than family members.


1. Avoiding Default Intestacy Rules: Under Ohio law, if an individual dies without a will, their assets are distributed to their closest relatives, with priority given to spouses, descendants (children, grandchildren), parents, and siblings (O.R.C. §2105.06). This process leaves no room for non-marital partners or chosen family, making it critical for LGBTQ+ individuals to have a clearly defined will. By specifying beneficiaries in a will, LGBTQ+ individuals can ensure that their assets go to the people they want, rather than to relatives who may not respect their relationships or wishes.


2. Family Estrangement Considerations: Many LGBTQ+ individuals experience strained relationships with biological family members. In cases where a biological family does not accept an individual’s partner or lifestyle, a will is essential to prevent those family members from inheriting assets by default. Including clear instructions in a will can help prevent challenges from family members who may attempt to override a partner’s claim to assets.


3. Formal Requirements for Valid Wills in Ohio: Ohio law requires that a will be in writing, signed by the testator (the person creating the will), and witnessed by at least two individuals who are not beneficiaries of the will (O.R.C. §2107.03). To avoid complications, LGBTQ+ individuals should seek assistance from an experienced attorney to ensure their will is legally binding and reflects their specific wishes.


Trusts as an Estate Planning Tool

Trusts are valuable tools for LGBTQ+ individuals who want to protect their assets and ensure smooth transitions of property without going through probate. In Ohio, trusts provide flexibility and privacy, allowing individuals to bypass the probate process, reduce the potential for family conflicts, and have more control over asset distribution.


Even if same-sex marriage is overturned and such marriage are no longer recognized in Ohio, trusts can name anyone the grantor wishes as the beneficiary of the trust assets – there are no rules saying that everyone named in a trust must be a relative or spouse – meaning that well written trusts should survive any changes to national or state law related to same-sex marriage in the coming years.

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Beneficiary Designations


For LGBTQ+ individuals, ensuring proper beneficiary designations on accounts like life insurance, retirement plans, and bank accounts is crucial. Beneficiary designations typically supersede instructions in a will, meaning that assets in these accounts pass directly to the named beneficiary without going through probate.

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Practical Steps to Implement Wills, Trusts, and Beneficiary Designations

Consult an Attorney:

Estate planning can be complex, particularly when navigating family dynamics and specific Ohio legal requirements. Consulting an experienced attorney can help LGBTQ+ individuals create a customized estate plan that addresses their unique needs and secures their assets.

Document Regularly and Clearly:

Ohio requires specific formalities for estate planning documents. LGBTQ+ individuals should work with professionals to ensure their wills, trusts, and beneficiary designations are clear, legally binding, and regularly reviewed to reflect life changes.

Include Contingency Plans:

When creating wills and trusts, it is wise to name contingent beneficiaries to account for any unforeseen circumstances. For LGBTQ+ individuals, this could mean naming a backup beneficiary to prevent assets from defaulting to biological relatives in cases where the primary beneficiary cannot inherit.

Communicate Wishes with Loved Ones:

While it may be uncomfortable, discussing estate plans with chosen beneficiaries can reduce the risk of misunderstandings or challenges. LGBTQ+ individuals can benefit from discussing their estate intentions with trusted friends or partners to ensure their wishes are respected.

Wills, trusts, and beneficiary designations offer LGBTQ+ individuals in Ohio the tools to secure their assets and protect their partners. By establishing clear documentation and regularly updating their estate plans, LGBTQ+ individuals can ensure that their financial and personal wishes are honored, regardless of family dynamics or potential challenges.

Health Care Directives and Powers of Attorney

Health care directives and powers of attorney are essential for LGBTQ+ individuals in Ohio, as they ensure that medical decisions align with personal wishes, especially in cases where biological family members may not be supportive. Without these documents, critical healthcare decisions may legally default to next of kin, potentially sidelining a partner or trusted friend. For LGBTQ+ individuals, securing these directives can prevent disputes and ensure peace of mind regarding medical and end-of-life care.

Living Wills and End-of-Life Decisions

A living will, also known as an advance directive, specifies an individual’s preferences regarding life-sustaining treatments, organ donation, and other end-of-life decisions. For LGBTQ+ individuals, this document is critical in avoiding family disputes and ensuring that end-of-life care aligns with their personal wishes.


Overview of Ohio’s Living Will Statutes: Ohio law (O.R.C. §2133.01) allows individuals to create living wills that outline their wishes for medical care in cases where they cannot communicate. A living will typically addresses life-prolonging treatments, resuscitation, and organ donation, giving medical professionals and family members clear guidance on end-of-life decisions.

Challenges for LGBTQ+ Individuals Without a Living Will: In the absence of a living will, healthcare decisions often default to next of kin. For LGBTQ+ individuals, this can result in biological family members making choices that contradict their wishes, particularly if there is a history of estrangement or lack of support. A living will mitigates this risk by clearly outlining personal preferences, helping prevent family interference in medical decisions.

End-of-Life Wishes and the Role of a Partner: For LGBTQ+ individuals in non-marital partnerships, a living will is especially crucial because it ensures that their partner’s input aligns with the documented preferences. This document can prevent disputes between a partner and family members, preserving the dignity and autonomy of the individual in their final moments.


Durable Power of Attorney for Finances

A durable power of attorney for finances enables an individual to designate someone to manage their financial affairs if they become incapacitated. For LGBTQ+ individuals, this is an essential tool, particularly for those who want their partner or a trusted friend to handle financial matters rather than a potentially unsupportive family member.

  • How It Works in Ohio:

    Under Ohio law (O.R.C. §1337.24), a durable power of attorney must be in writing, signed, and witnessed or notarized. This document allows the appointed agent to handle specific financial tasks, such as managing bank accounts, paying bills, and handling property transactions, even if the principal becomes incapacitated.

  • Protecting Financial Interests for LGBTQ+ Individuals:

    For LGBTQ+ individuals, a durable power of attorney is crucial to ensuring that financial matters align with their wishes. If an individual becomes incapacitated without a designated financial power of attorney, a biological relative may take over financial decision-making, potentially making choices that conflict with the individual’s intentions or disregarding the needs of a partner.

  • Impact on Long-Term Care and Asset Protection:

    For LGBTQ+ individuals planning for long-term care, a durable power of attorney allows a trusted agent to make critical financial decisions, such as applying for Medicaid benefits or managing retirement accounts. This can be particularly important if an LGBTQ+ individual wants their partner to control their assets rather than relinquishing control to family members.

  • Nominating Guardians:

    For LGBTQ+ individuals with biological relatives who are unsupportive or hostile to the individual or their partner, becoming incapacitated can open the individual to attack from their relatives via guardianship filings. A claim, legitimate or not, that the individual is not competent to make decisions for themselves in a guardianship application can cause months of legal battles and potentially the loss of autonomy to a hostile relative. A well-written power of attorney document will include a section for the individual to nominate a person to serve as their guardian should an appointment become necessary. While not completely controlling, a guardian nomination carries a presumption that most probate courts will then choose that person to appoint as the individual’s guardian.

Practical Considerations for LGBTQ+ Individuals Using Health Care Directives and Powers of Attorney

Regular Review and Updates

LGBTQ+ individuals should review their health care directives and powers of attorney regularly, especially after significant life changes, such as a new relationship, the dissolution of a partnership, or a family conflict. Keeping these documents updated helps ensure that the right people have the authority to make decisions.

Communicate Wishes Clearly

While it may feel difficult, discussing medical and financial wishes with a trusted partner or friend can prevent misunderstandings. By informing others of the content of their directives, LGBTQ+ individuals can ensure that their chosen agents are fully prepared to advocate for their wishes.

Appoint Alternate Agents

In case a primary agent is unavailable or unable to fulfill their duties, LGBTQ+ individuals should consider appointing alternate agents. This ensures that there is always someone with the authority to act in line with their wishes, providing additional security in uncertain situations.

Store Documents Accessibly

Health care directives and powers of attorney should be stored in an accessible location, and copies should be provided to relevant healthcare providers and agents. Keeping these documents readily available ensures that they can be enforced without delay.

Health care directives and powers of attorney are crucial for LGBTQ+ individuals in Ohio to protect their rights and ensure that trusted people make decisions in alignment with their values and wishes. By creating these documents, LGBTQ+ individuals can prevent potential family interference, safeguard their autonomy, and provide clear guidance for end-of-life and financial decisions.

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