The Importance of Wills for Non-Traditional and LGBTQ+ Families

Without a will, state law may exclude the people you consider family. This makes a will essential to protect your chosen family and honor your wishes.

This article covers the importance of wills and advance directives for non-traditional and LGBTQ+ families. Keep reading to learn why it’s critical you have these documents in place, unique considerations for non-traditional families, how to find legal help or DIY options, and more.

What’s a Non-Traditional Family?

The concept of “family” has changed over the years. Historically, the norm for a family was a husband and wife, and likely at least one or two children. That’s no longer the case. It’s increasingly common to encounter non-traditional family structures. This can look like:

• An unmarried couple living together
• A couple in a same-sex marriage or other LGBTQ+ couple
• Married couples who adopt kids
• Single parents
• A household that includes extended family members like grandparents, aunts, or uncles
• A second marriage, with or without children from a first marriage
• Blended families
• A committed partnership or marriage in which the partners choose to live separately

What Exactly Is a Will?

Generally speaking, a will is a legal document that spells out how you want your assets, such as real estate, distributed after your death. In addition to laying out who gets your most prized possessions if you die, a will allows you to name an executor. That’s the official title of the person who handles the administration of your estate. A will can also be used to name a guardian for any minor children or stepchildren.

In contrast, a will can’t be used to gift assets that are owned and titled jointly with someone else. They also generally can’t be used to gift money from IRAs and other retirement plans. Instead, the person or people who will inherit that money will have been named directly with your plan’s administrator. They are called beneficiaries. The same is generally true for the proceeds of any life insurance policies in accordance with beneficiary designations.

Will Considerations for Non-Traditional Families

Ideally, everyone would have a will. When it comes to non-traditional families, though, there are some unique factors that make having a will especially important.

Unmarried Partners

If you’re living with a partner, but you’re not married, you’ll want a will to ensure that your partner inherits from you if you die. The law doesn’t otherwise protect the inheritance rights of unmarried partners. Having a valid will in this scenario also reduces the odds of a blood relative with whom you don’t get along or are estranged from successfully challenging your inheritance wishes.

Blended Families

If you’re married, but you or your spouse have children from a previous relationship, you’ll want to make sure you have a will that clearly explains what real or personal property should be given to your spouse versus your or your spouse’s children. Want to make sure your stepson inherits your vinyl record collection, but your biological daughter inherits your vintage motorcycle? Lay that out in a will.

Single Parents

If you’re a single parent, you’ll want a will to name a guardian for your child or children. Maybe you know your brother would want to raise your child if you died, but you’d prefer your best friend to have that honor. If that’s the case, put it in writing in your will. But first, have a conversation with the person or people you plan to name to confirm they’re willing to take on that responsibility in the event of your death.

LGBTQ+ Families

For LGBTQ+ families, a will is especially important because state intestacy laws don’t always recognize your partner or other chosen family. A will lets you clearly name who should inherit from you, who should care for your children, and how to divide your assets. These protections are especially crucial if you’re estranged from biological relatives.

What Happens if You Die Without a Will?

If you die and you don’t have a will, your estate will be settled based on the intestacy laws of your state in a process called probate. Without a will that names an executor, a judge will need to appoint an administrator to act in that role. The administrator may be a surviving spouse if the couple was married, but it could be someone you or your loved ones know. As a result, that person may well make decisions that wouldn’t necessarily line up with your wishes.

While each state’s laws vary, it’s likely that only your closest blood relatives, such as biological children, will inherit your assets if you die without a will. A will is a simple and effective tool to avoid that outcome and protect your chosen family’s interests.

Advance Directives for Non-Traditional and LGBTQ+ Families

A living will and a healthcare power of attorney are not the same thing, but they work together. Collectively, a living will and a medical/healthcare power of attorney are often referred to as advance directives.

Living Wills

A living will is a legal document that lays out your personal wishes regarding the type of medical intervention and life-sustaining measures you’d like used if you’re not capable of conveying those wishes yourself due to incapacity. This could include instructions for end-of-life care and information for caregivers about hospital visitation. This can be very helpful for same-sex couples.

Medical and Healthcare Power of Attorney

A medical/healthcare power of attorney (POA), or health care proxy, is the legal document used to name who you want to make medical decisions for you in the event that you’re unable to make those decisions for yourself. Basically, the power of attorney answers the “who” question, whereas the living will answers the “what” question with respect to medical life decisions.

Why Are Advance Directives Important?

Having advance healthcare directives in place is important for everyone, but these documents can be even more important for members of the LGBTQ+ community.

Why? Historically, there’s been discrimination against LGBTQ+ couples and their medical rights based on their gender identity or sexual orientation. This has included the right to medical decision-making. Without a legal document, healthcare providers are less likely to recognize your partner or spouse as the person you want making medical care and medical treatment decisions for you.

A medical power of attorney is crucial if you’re estranged from your parents or adult children and don’t want them to be in charge of making medical decisions for you. Name your spouse, partner, or close friend to avoid confusion or unwanted intervention by biological family members.

Finally, advance directives can help you protect your gender expression, which may be especially important to you if, for example, you identify as transgender.

Creating Your Advance Directives

While helpful, it’s not required to hire a lawyer in order to create a living will or medical power of attorney. You do, however, need to have these documents in writing. There are various forms available online that can help you get started.

Each state has its own requirements for advance directives to be legally valid. You’ll want to make sure your documents comply with your state’s laws. Depending on the state you live in, keep in mind that you might need to sign your documents in front of a notary public and possibly other witnesses, too.

Questions To Consider When Creating a Living Will

Your personal values are key when creating a living will. Take some time to consider your medical wishes, and then be as specific as possible in writing them down. The following are just some of the many questions and scenarios to consider:

• Is it more important to you to live as long as possible, or do you place a higher value on the quality of your life?
• What about if you’re in a coma and you need to be on a ventilator? Is that something you’d want?
• Under what circumstances would you want to receive cardiopulmonary resuscitation (CPR)?
• Under what circumstances, and for how long, would you want to be fed through a tube?
• If you had a serious infection, would you want to be treated with antibiotics? What if the infection was mild?

Your decisions about how you’d want to handle any situation might change as you move through different stages of life. Once you’ve created your documents, revisit them periodically to ensure they still align with your wishes.

Who Needs Copies of Advance Directives?

For your living will and medical power of attorney to be useful, they need to be accessible to the right people in the event of a medical emergency. It’s a good idea to give copies to the following people or places:

• The person you’ve named in your power of attorney as the person acting on your behalf
• Your doctor
• Your health care facility or nursing home
• Other medical providers, including mental health care providers

You may also choose to provide trusted family members and loved ones with copies of your advance directives, as well as your care providers.

Get Started Now: Legal Help and DIY Options Are Available

You can write a will on your own, but it can also be helpful to get a lawyer’s advice and perspective to make sure you don’t overlook anything important in your estate planning. A tax planning advisor could also give you estate tax planning strategies.

Make sure to consider preparing other estate planning documents, including a living will, a power of attorney (authorizing someone to make financial decisions for you), or a durable power of attorney (designating someone to make medical decisions for you if you can’t). You might even benefit from having a prenup.

If you have specific questions or just feel overwhelmed at the idea of getting started with creating advance directives, it’s a good idea to reach out to a local attorney for guidance. FindLaw’s directory of estate planning lawyers can get you started. Enter your location (city or ZIP code) for a list of qualified legal professionals in your area. Because state law is relevant, your attorney should be licensed in your state.