Estate Planning for New York Chosen and ENM+ Families

Questions You Should Consider But Might Not be Asked

If you live in Brooklyn or elsewhere in New York and your family consists of more than just one legal partner, or if you have chosen family or loved ones outside of the legal framework of family, your estate plan needs to do some lifting to provide for the people the law has not yet developed to recognize.

New York’s default estate planning and inheritance laws assume a single, legally recognized spouse.  And most estate planning attorneys practice around this legal framework: they will ask the basics, like who will care for your children, who will inherit your property, and who can make your medical decisions. 

But if there are other people in your orbit, or your constellation looks different altogether, you may feel left out of that framework or you may have questions around how to provide for your people.

Why Do I Need an Estate Plan – and What Happens if I Don’t Have One?

Under New York law, the general rule is that if you don’t have a will, upon your passing your assets will pass to your closest legal relatives.  There is a specific statutory order which may provide for a legal spouse, children, parents, or siblings.

If you have a partner you are not married to, that person does not have an automatic, statutory right to inherit from you, and they may not have the ability to make medical decisions for you, as hospitals will only generally recognize next of kin. 

This could have far-reaching implications in your life and theirs.  If you have been with any partner for any long period of time but have not chosen to legally codify that they are your spouse, assets that you may have wanted to leave to them could automatically pass to someone else, and it could lead to disputes about your property in your absence, or it could lead to disinheriting people you cared for.

But that doesn’t mean you can’t provide for them – only that you need a legally drafted estate plan that overrides this presumptive statutory framework.

Questions You Should Consider

Whether you are considering meeting with an attorney to discuss your options or are just starting to think about what your options are, here are some helpful questions to sit with to help you decide what is right for you: 

• If something happened to me tomorrow, would the default law covering a legal spouse, children, parents and siblings adequately provide for the people I consider family today?

• Who is in the best position to make medical decisions for me – have I had conversations with loved ones about what I want for myself, and are they understanding and willing to carry out my wishes?

• Who do I think might most accurately carry out my estate plan, and does my current estate plan reflect all of my relationships?

• What members of my chosen family do I want to have decision-making authority for me?  How do I want to divide my property and assets to care for the people in my life?

• What conversations do I need to have with members of my chosen family, and how can I make space for those conversations?

• How can I ensure care for my children passes to my co-parent(s) or other loved ones who are not biologically or legally connected to my child(ren)?  Have I considered who I might name in my guardianship nominations?

What an Estate Plan for Chosen and ENM+ Families in New York Should Cover

A thoughtful estate plan for chosen or ENM+ families in New York may include, among other things:

• A will clearly naming partners, chosen family and other loved ones as beneficiaries, as well as a trusted executor(s);

• A healthcare proxy naming the people—with a clear order of priority—who you have authorized to make medical decisions on your behalf;

• A durable power of attorney to make financial decisions, especially if you choose someone other than a legal spouse to manage your finances in the event of incapacitation;

• Guardianship nominations for your children that reflect your actual parenting structure, including co-parents who are not biologically related to your children or who have not legally adopted your children;

• Clear documentation of your intentions to reduce potential family disputes; and

• If appropriate, a trust to manage and distribute your property and finances to multiple family members over time, as opposed to a single line of inheritance.

In all of these cases, it is important to be proactive with your people and have these conversations that address your priorities.  These conversations may be scary, but ultimately you might find them to be empowering, and you can have the peace of knowing that you are affirmatively protecting the people you love.

A Note on Multiple Partners

If you have multiple serious or romantic relationships or partnerships, you should know that New York law does not itself have a framework for dividing property, decision-making authority, or inheritances among multiple partners.

You may also have family members that do not understand your constellation of family, and they might attempt to challenge certain aspects of your estate plan if your documents do not clearly describe your intentions.

This means that you can still provide for your people, but you have the obligation to proactively build out these protections with intention.  Do not assume the law will handle it the way you may want if you do not have corresponding paperwork to back that up. 

For families who share homes, finances, parenting responsibilities, or long-term commitments among multiple partners, proactive estate planning is essential. A well-drafted plan can identify who inherits, how assets should be divided, who may make financial or healthcare decisions, and how minor children or dependents should be protected.  The right documents can make all the difference.

Why You Should Build Your Estate Plan Now

Estate planning documents are the kind of thing that is easy to put off, especially if nothing feels urgent right now.

But the value of these documents comes from having them in place right when they are needed, and in life, there are no guarantees.

For Brooklyn and NYC queer, ENM+, and chosen families in particular, taking the time now to name the people you want to care for is one of the clearest and most proactive things you can do to make sure your family is protected in the way you intend.

If you are unsure whether your current estate plan (or lack thereof) reflects the people you actually consider family, that in itself is a good reason to reach out to an experienced and chosen-family-friendly attorney and see what your options are.  Expand Law can help you draft the documents that reflect how your life and family look, so your people are provided for in the long term.

Expand Law maintains an active blog which provides general legal information.  Under no circumstances shall reviewing this blog constitute legal advice.  If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.

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