Securing LGBTQ+ Families in Uncertain Times: Estate Planning Strategies Amid Evolving Laws in 2025

Introduction: Why Pride Month Is the Perfect Time to Reevaluate Your Legal Safeguards

The past two years have brought a wave of legislative and judicial actions impacting the rights and recognition of LGBTQ+ individuals and families. According to the ACLU, over 500 anti-LGBTQ+ bills were introduced across the country in 2023, with at least 40 states introducing new measures in 2024 targeting parental rights, healthcare access, and non-discrimination protections. This surge has created widespread legal uncertainty—particularly in states that are rolling back protections or redefining key aspects of family law¹

Pride Month isn’t just about celebration—it’s about visibility, affirmation, and protection. In today’s legal and political climate, estate planning has become more than financial preparation; it’s a powerful form of self-advocacy. By proactively securing legal recognition of your identity, relationships, and family structure, you help ensure your wishes are honored—regardless of how laws evolve or where you live.

The Legislative Landscape and Its Hidden Impact on LGBTQ+ Estate Plans

How Recent Laws Threaten Legal Certainty

A resurgence of anti-LGBTQ+ legislation in recent years—particularly targeting transgender individuals and non-traditional families—has created growing legal uncertainty. While many of these laws don’t explicitly address estate planning, they indirectly threaten legal recognition in critical areas such as probate, guardianship, and healthcare decision-making.

For example, laws that restrict access to gender-affirming care can interfere with a person’s ability to update identity documents, leading to inconsistencies across wills, trusts, and powers of attorney. These discrepancies can cause legal challenges in court, especially in less-affirming jurisdictions.² Likewise, in the wake of Dobbs v. Jackson Women's Health³ Organization, some state-level lawmakers and courts have signaled openness to revisiting Obergefell v. Hodges,⁴ which remains the cornerstone of marriage equality since the 2015 decision that legalized same-sex marriage nationwide.⁵

The “State-by-State” Legal Maze

Even with federal protections, conflicting state laws can jeopardize your estate plan. For example, what’s perfectly valid in California may not hold up in Texas or Florida—particularly if courts challenge your parental rights or gender identity. This is a real concern for LGBTQ+ individuals, as some states interpret family relationships and legal identity through a narrower, more traditional lens.

In states like Texas, a non-biological parent in a same-sex marriage may not be recognized as a legal parent without a formal adoption decree, regardless of marital status or parental involvement.⁶ Similarly, transgender individuals may face delays—or even outright denial—of their healthcare directives or wills if there is a discrepancy between their legal name or gender marker and what a court recognizes. In states like Texas, Florida, Kansas, and Tennessee—where individuals are not permitted to update the gender marker on their driver's licenses—such discrepancies are more likely to arise due to restrictive identification policies.⁷ Additionally, these four states, along with Montana, Iowa, and Indiana, prohibit changes to the gender marker on birth certificates, further compounding the difficulty of ensuring legal documents reflect an individual’s affirmed gender identity.

Some jurisdictions still rely on outdated next-of-kin laws that exclude same-sex partners from healthcare decision-making—especially when there is no medical power of attorney or guardianship designation in place. Because HIPAA defers to state law when recognizing a “personal representative,” even properly executed documents can be questioned in less supportive states, where judges may challenge the validity of your relationship or identity.⁸ This is why having uniform, airtight legal documents—like wills, trusts, healthcare directives, and powers of attorney—is crucial. Review your estate plan annually, and always after relocating, coming out, updating gender markers, or creating a new family structure. Being proactive is the best way to ensure your rights are respected—no matter where you live.

Why Second-Parent Adoption Matters: The Legal Power Behind the Adoption Decree

You might assume that being legally married guarantees both parents have equal rights when it comes to their children. After all, marriage is a legally recognized union, and it should ensure both partners have the same legal standing. Unfortunately, this isn’t always the case, especially in states like Texas and Florida, where LGBTQ+ rights and parental recognition remain complex and inconsistent.

• Texas: In Texas, while same-sex marriage is legally recognized, the state has no specific statutory provisions for second-parent adoption, leaving same-sex couples to rely on stepparent adoption laws or navigate a patchwork of local judicial practices.⁹ Because Texas statutes are silent on second-parent adoption, non-biological parents in same-sex relationships may not be automatically granted legal parent status—even if married—especially when a child was born before the marriage or through assisted reproduction without formal documentation.¹⁰ Courts have shown inconsistent interpretations of these cases, and judicial reluctance remains in some jurisdictions, making confirmatory or second-parent adoption essential to protect parental rights.
• Florida: Similarly, in Florida, although same-sex marriage is legal and second-parent adoption is permitted, legal recognition for non-biological parents remains far from automatic. While Florida courts have become more supportive of LGBTQ+ families, the absence of uniform, statewide protections means that non-biological parents can still face significant legal hurdles—especially in the event of a separation, divorce, or the biological parent’s death.¹¹ As the Children’s Law Center of Miami notes, without a formal adoption or court order, a non-biological parent may struggle to assert their parental rights. Even in a legal marriage, one spouse might not be recognized as a legal parent, creating complications in custody disputes, medical decision-making, or inheritance matters.

This becomes especially critical when non-biological LGBTQ+ parents face legal challenges to their parental rights. Without a court-ordered second-parent or confirmatory adoption, even a married parent may lack automatic legal recognition—leaving them vulnerable in custody disputes or if the biological parent dies. The resulting legal battles can be emotionally and financially devastating, making formal adoption not just protective, but essential.

Guardianship and Healthcare Directives: Defending Your Dignity and Family Choices

In moments of crisis, courts often defer to next-of-kin laws—which typically prioritize biological family over chosen family or life partners. This can leave LGBTQ+ partners excluded from making critical medical decisions or even attending a loved one’s funeral.

Key legal tools include:

1. Medical Power of Attorney & HIPAA Release: These let you designate your partner (or anyone you trust) to make medical decisions and access medical records.
2. Living Will / Advance Directive: Clearly outline your wishes for life-sustaining treatment and end-of-life care to ensure your partner or chosen family—not unsupportive biological relatives—are the ones respected and empowered during emotional times.
3. Guardianship Nomination: If you’re an LGBTQ parent or caring for a loved one with special needs, it is essential to name guardians who respect your identity, relationship, and chosen family structure.

True-to-Life Warning: Legal Vulnerabilities Are Not Just Hypothetical

Legal advocacy groups have documented cases where same-sex spouses were excluded from hospital rooms or funeral arrangements because they lacked the proper legal documents.¹² The law often defaults to biological relatives unless you’ve created your own safety net.

For instance, in the case Berwick v. Wagner, two men who had legally established themselves as parents in California faced significant challenges when their relationship ended.¹³ Despite being legally recognized as parents by a California court, one of the men (Wagner) had to fight to assert his parental rights in Texas when the other parent (Berwick) attempted to sever that connection.¹⁴ This case illustrates the critical need for proper legal recognition and documentation—whether through wills, powers of attorney, or other legal safeguards.

Without these protections, your rights, especially as a same-sex spouse or parent, may not be respected in crucial moments, such as medical or funeral decisions. Make sure you have your legal affairs in order to avoid leaving these matters to chance.

Red Flags in Texas, Florida, and Beyond

• Texas: SB 14 (enacted in 2023) bans gender-affirming care for minors and may indirectly restrict transgender adults from updating identification—complicating estate planning documents.¹⁵ Additionally, In Pidgeon v. Turner, the Texas Supreme Court reversed a lower court’s injunction that prohibited then-Mayor Sylvester Turner and the City of Houston from providing employment benefits to same-sex spouses,¹⁶ despite the U.S. Supreme Court's ruling in Obergefell requiring states to recognize same-sex marriages.¹⁷ The case highlighted Texas's ongoing resistance to extending full legal recognition and benefits to same-sex couples, reinforcing the state's limited view of marriage rights.
• Florida: The legislative trend of curtailing LGBTQ+ rights in Florida has accelerated in recent years. For example, Florida House Bill 1069 (HB 1069) which was signed into law on May 18, 2023, and took effect on July 1, 2023, imposes restrictions on the use of preferred pronouns in public K–12 schools, prohibits certain instructional content related to sexual orientation and gender identity, and expands procedures for book bans.¹⁸ These laws have sparked legal challenges, including the case of Tobin v. Pinellas County School District,¹⁹ where a transgender teacher filed a lawsuit alleging violations of his First Amendment rights. Tobin claimed he was forced to resign after being directed to use pronouns aligned with his sex assigned at birth, despite requesting recognition as he/him or they/them.²⁰ The state argued that Tobin’s pronoun usage was not protected speech, and its interest in upholding the law outweighed his requests.²¹ This case illustrates the broader climate of legal hostility toward LGBTQ+ expression, especially in educational and institutional settings. While Florida does allow second-parent adoption, the absence of uniform, statewide protections means non-biological parents in same-sex marriages can still face legal vulnerability—particularly in situations involving separation, divorce, or the death of a partner.
• Tennessee: Passed laws allowing service refusals to LGBTQ+ individuals under “religious freedom” justifications.²² While these laws don’t explicitly name LGBTQ+ people, advocates warn they disproportionately harm the community, particularly transgender individuals seeking gender-affirming care. As highlighted in the NBC report, some patients have been informally turned away or denied essential care without providers ever explicitly citing their religious objections.²³
• Missouri & Oklahoma: Introduced bills in 2024 to limit recognition of out-of-state same-sex marriages or adoptions.²⁴ These bills propose the creation of a new legal category called “covenant marriage,” which would only apply to unions between one man and one woman, effectively undermining the legitimacy of same-sex marriages without directly naming Obergefell.²⁵ While these measures stop short of explicitly challenging federal law, advocates warn they’re part of a coordinated effort to erode marriage equality at the state level.
• Alabama: Continues to challenge the scope of federal protections around marriage and gender identity. In 2025, the state successfully defended its ban on gender-affirming care for minors after families dropped a federal lawsuit, allowing enforcement of a law that makes such care a felony.²⁶ State officials celebrated the outcome as a national victory, signaling Alabama’s ongoing resistance to federal civil rights protections for transgender individuals.

Bottom line: Even if you live in a progressive state now, your legal documents must travel well. As the legal and social climate continues to evolve, especially in less-affirming jurisdictions, only proactive, airtight estate planning can ensure your spousal and parental rights are consistently recognized across state lines.

Legal Planning as an Act of Pride and Protection

Estate planning is more than wealth distribution—it affirms your identity, secures your loved ones, and shields your family from legal uncertainty. In today’s shifting landscape, taking the time to put clear, thoughtful plans in place is a powerful act of self-advocacy. At Fleurinord Law, we help LGBTQ+ individuals and families build personalized, durable estate plans that reflect who they are and what matters most. If you’re thinking about how to safeguard your rights and your loved ones, we invite you to start the conversation this Pride Month.

¹ Annette Choi, Record number of anti-LGBTQ bills were introduced in 2023, (Jan. 22, 2024), https://www.cnn.com/politics/anti-lgbtq-plus-state-bill-rights-dg (last visited Jun. 4, 2025).

² Solcyre Burga and Chantelle Lee, The Implications of Trump’s Executive Order on Sex, Time, (Jan. 27, 2025), https://time.com/7210389/donald-trump-executive-order-sex-gender-id/ (last visited Jun. 4, 2025) (reporting that Trump’s executive order would require federal agencies to define sex based strictly on biological traits, potentially invalidating gender marker changes on documents like passports and Social Security records).

³ Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). This Supreme Court decision overturned Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion and returning the authority to regulate abortion to the states.

⁴ Obergefell v. Hodges, 576 U.S. 644 (2015).

⁵ Rebecca Melnitsky, Protecting Same-Sex Marriage After Dobbs, N.Y. St. B. Ass’n, News Ctr. (Apr. 19, 2023), https://nysba.org/protecting-same-sex-marriage-after-dobbs/ (last visited Jun. 4, 2025) (noting that Justice Thomas’s concurrence in Dobbs invited reconsideration of substantive due process precedents like Obergefell, raising fears among LGBTQ+ advocates about the durability of marriage equality).

⁶ Texas Legal Services Ctr., LGBTQ+ Parental Rights, Texas Law Help, (last updated Sept. 8, 2022), https://texaslawhelp.org/article/lgbtq-parental-rights (last visited Jun. 4, 2025) (discussing procedures for establishing legal parenthood in assisted-reproduction and adoption contexts).

⁷ Movement Advancement Project (MAP), Equality Maps: Identity Document Laws and Policies, https://www.lgbtmap.org/equality-maps/identity_document_laws (last visited Jun. 4, 2025). Nine states—Georgia, North Carolina, West Virginia, Indiana, Missouri, Nebraska, South Dakota, Wyoming, and Idaho—require individuals to publish notice of a name change request, a practice that can pose safety risks and financial burdens, especially for transgender individuals. Notably, Idaho, Indiana, North Carolina and West Virginia are among these nine states that, along with 19 others, impose additional legal hurdles on individuals with a criminal record seeking a name change, bringing the total number of such states to 23.

⁸ U.S. Dep’t of Health & Human Servs., Guidance on HIPAA, Same‑Sex Marriage, and Sharing Information, Office for Civil Rights, (last reviewed Mar. 5, 2025), https://www.hhs.gov/hipaa/for-professionals/special-topics/same-sex-marriage/index.html (last visited Jun. 4, 2025).

⁹ See Michael J. Ritter, Adoption by Same-Sex Couples: Public Policy Issues in Texas Law & Practice, 15 Tex. J. C.L. & C.R. 235, 240-41 (2010), https://sites.utexas.edu/tjclcr/files/2022/11/Ritter_Adoption-by-Same-Sex-Couples.pdf (last visited Jun. 5, 2025).

¹⁰ Id. at 242.

¹¹ Scott M. Bernstein & Elizabeth F. Schwartz, LGBTQ Families in Court, KidSide Miami (Sept. 23, 2022), https://kidsidemiami.org/lgbtq-families-in-court/ (last visited Jun. 5, 2025).

¹² See Garrett Riou, Hospital Visitation and Medical Decision Making for Same-Sex Couples, Ctr. for Am. Progress, (Apr. 15, 2014), https://www.americanprogress.org/article/hospital-visitation-and-medical-decision-making-for-same-sex-couples/ (last visited Jun. 5, 2025).

¹³ Berwick v. Wagner, 509 S.W.3d 411 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

¹⁴ Id.

¹⁵ See S.B. 14, 88th Leg., R.S. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB00014F.pdf (last visited Jun. 5, 2025). This bill, signed into law on June 2, 2023, prohibits physicians and healthcare providers from performing certain gender-transitioning procedures and treatments on minors under 18 years of age, including surgeries and hormone therapies intended to alter a child's biological sex. It also restricts the use of public funds for such procedures and mandates the revocation of medical licenses for violations. The law became effective as of September 1, 2023.

¹⁶ Pidgeon v. Turner, 538 S.W.3d 73 (Tex. 2017)

¹⁷ Obergefell, supra note 4.

¹⁸See Nat’l Educ. Ass’n, Know Your Rights: Florida (updated Apr. 25, 2024), https://www.nea.org/sites/default/files/2024-06/fl-kyr-updated-apr2024.pdf (last visited Jun. 5, 2025).

¹⁹ Tobin v. Pinellas County School Dist., No. 4:25-cv-00173 (N.D. Fla. 2025).

²⁰ Id.

²¹ Id.

²² See Jo Yurcaba, 1 in 8 LGBTQ People Live in States Where Doctors Can Refuse to Treat Them, NBC News (July 28, 2022), https://www.nbcnews.com/nbc-out/out-health-and-wellness/1-8-lgbtq-people-live-states-doctors-can-refuse-treat-rcna39161 (last visited Jun. 6, 2025).

²³ Id.

²⁴ See Jo Yurcaba and Brooke Sopelsa, Lawmakers in 9 states propose measures to undermine same-sex marriage rights, NBC News (Feb. 25, 2025), https://www.nbcnews.com/nbc-out/out-politics-and-policy/lawmakers-9-states-propose-measures-undermine-sex-marriage-rights-rcna193743 (last visited Jun. 6, 2025).

²⁵ Id.

²⁶ See Nat’l Educ. Ass’n, Families End Challenge to Alabama Ban on Gender-Affirming Care for Transgender Minors, WBRC (May 3, 2025), https://www.wbrc.com/2025/05/03/families-end-challenge-alabama-ban-gender-affirming-care-transgender-minors/ (last visited Jun. 6, 2025).