Planning for all families begins with the same foundational estate planning steps. However, if you are a non traditional family or in a same sex relationship additional steps are necessary to ensure your loved ones are protected and your wishes followed. If you want your partner, instead of your biological relatives, to make decisions on your behalf additional steps need to be taken.
The first step to consider is preparing a document regarding disposition of your remains following death. This is a relatively straightforward document that allows you to specify who should be responsible for making decisions regarding your body and funeral services after you have passed. The Texas Health and Safety Code provides that, unless a person has left written instructions regarding the disposition of their remains following death, certain individuals will have the right to make decisions on their behalf. This list of people is very specific, as is the order in which they obtain such rights. The individuals listed include a surviving spouse, adult children and siblings, among others. Notably, however, the person designated in a written instrument signed by the deceased will have the right to make any decisions, regardless of whether he or she is related by blood or marriage. Specific requirements regarding the format and content of this document must be satisfied to comply with state law.
The second step to consider is preparing a declaration of guardian in advance of need. This document allows you to specify who should be appointed your guardian if you become disabled. The Texas Probate Code provides that any person may in writing declare certain persons and disqualify certain persons to serve as guardians of the person or estate. The designated person must still comply with the statutory requirements should they be called upon to be the guardian. However, they will be given preference over biological family members. This designation can also change the order biological family members are considered. For example, designating a sibling will place that person ahead of a parent or spouse. Specific requirements regarding format and content of this document must be satisfied to comply with state law.
Every state has different requirements regarding who will have the right to make decisions if you become incapacitated or following a person’s death. Therefore, all families should work with an attorney to develop a plan that meets their needs. However, this is particularly important for non traditional families and same sex couples because the law does not favor these relationships and the best person to make a decision may not have legal standing to do so. A complete estate plan anticipates the presumption in favor of blood relatives and marriage and creates a plan that is best suited for the individual’s situation.
Law Offices of Debbie J. Cunningham
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