Families today come in many forms. Blended households, unmarried couples, single parents, chosen family relationships, and co-parenting arrangements are increasingly common. Unfortunately, the law in the probate and trust area has not kept pace with these less traditional family structures. Without proper planning, your “family” members may not have the legal authority to make decisions, inherit property, or care for your children. For this reason, it is important that those in nontraditional families plan properly to provide this authority that is not provided automatically by law.
Here are five important estate planning issues non-traditional families should address.
1. Health Care Decision-Making Authority
Many people assume their spouse, partner or closest loved one will automatically have authority to make health care decisions for them if they are not able to make those decisions themselves, but this is not the case. The law recognizes only the Health Care Agent designated in a Health Caer Proxy as the legal decision-maker, or in the absence of a Health Care Proxy, a Court-appointed guardian. In practice, and in the absence of a Health Care Proxy, physicians and other health care providers will often allow a spouse or child to make decisions if the family is intact and there appears to be no disagreement among family members. However, for unmarried couples and chosen family relationships, the decision-making authority is less clear and can result in confusion and exclusion from decision-making when it matters most.
It is important that those in nontraditional families sign a Health Care Proxy that legally appoints a person, called a Health Care Agent, to make medical decisions on your behalf if you cannot communicate your wishes yourself. You can also designate an alternate Health Care Agent if the first person named cannot act or cannot be reached in an emergency. This is the best way to guarantee the people you want to make health care decisions for you will have the authority to make them if the need arises.
A HIPAA Authorization should also be signed, which allows you to list the people who have permission to receive information from your medical providers.
2. Burial and Funeral Instructions
The person with legal authority over your funeral and burial arrangements may not be the person you would have chosen. In Massachusetts, control over these matters is given to certain people as dictated by regulation, in this order of priority: surviving spouse, surviving adult child(ren), surviving parent(s), surviving sibling(s).
Unmarried partners, close friends, and chosen family members have no legal authority to make these decisions unless you sign a document giving them that authority in advance.
In Massachusetts, the law provides that the person named as the Personal Representative (formerly called the Executor) in your Will may carry out written instructions relating to the disposition of your body following your death, including funeral and burial arrangements, even before they are formally appointed by the Court.
A written document that sets out whether you would like to be buried, cremated or disposed of in one of the many “green burial” options, and discussing your preference for funeral or memorial services, including none at all. Clear instructions about what you would like to happen after your death will not only ensure your wishes are carried out, but will avoid confusion and conflict, and reduce stress for loved ones at an already difficult time.
3. Planning for Blended Families
Blended families face unique estate planning challenges. Blended families with younger children may be juggling obligations to and legal rights of one or more former spouses with respect to support and guardianship of minor children. Blended families with adult children often need to balance the desire to benefit and care for a current spouse with the desire to properly benefit their adult children from prior relationships. There may be a pre-nuptial agreement in place that must be taken into account when formulating the estate plan. Without careful planning, assets may unintentionally pass in ways that violate existing agreements, create conflict between family members or disinherit children from prior relationships.
A thoughtful estate plan can balance the obligations to and rights of former spouses while providing for a surviving spouse and protecting an inheritance for children. Clear communication and updated documents are especially important after remarriage, divorce, or the birth or adoption of children.
4. Guardians for Minor Children
Parents of minor children should formally nominate guardians in their estate planning documents. A guardian is the person who will have the legal authority to make decisions for a minor child if the child’s parents are deceased or unable to care for the child, including the authority to make decisions about where the child will live and go to school and the health care the child will receive. This issue can be particularly important for single parents, co-parenting families, LGBTQ+ families, families with non-biological parental figures and families with strained extended family relationships.
For families where a child is being raised by individuals who may not be the child’s parents, those individuals should become the child’s legal guardian, and will then have the ability to nominate both permanent and emergency guardians for that child.
A guardian nomination allows parents or guardians to clearly express who should care for minor children, both long-term and short-term in the event of an emergency when the parents or guardians are unavailable.
Equally important is planning to ensure there is a conservator or Trustee named to manage financial assets for young children, including assets children may inherit from a deceased parent or guardian.
The Court will appoint the guardian of a minor child, taking into account the guardian nominated by the parent as well as the child’s best interests. While courts ultimately make the final determination, written nominations carry significant weight and provide valuable guidance.
5. Estate Planning for Unmarried Couples
Many unmarried couples share homes, finances, children, and long-term commitments, but the law does not provide the same protections available to married spouses.
Without planning, an unmarried partner in Massachusetts has no automatic inheritance rights, no authority to make medical decisions, no rights to manage finances during a partner’s incapacity, no rights to access to financial accounts owned by their partner. Proper estate planning with careful attention paid to how assets are owned and beneficiaries are designated can ensure that unmarried couples can make decisions for each other, and will benefit to the extent desired if one partner passes away. Trusts are useful planning tools in a situation where privacy is important and there is a concern that family members will try to interfere with the inheritance left to a partner.
If unmarried couples own real estate together, cohabitation or property agreements are valuable documents that set out the rights each owner has in the property if the couple un-couples, including the right to buy out the other member of the couple, how expenses are shared, what happens to the property if one member of the couple dies, etc.
Non-traditional families require thoughtful estate planning that reflects the reality of their relationships and priorities, and is especially important given that state law fails to take into account these non-traditional family structures. Proactive planning can provide clarity of wishes, protect partners, children and other family members, and provide peace of mind for the people you care about most. An estate plan is not just about transferring assets at death. It is about making sure your wishes are respected, your loved ones are protected, and the right people have authority when it matters most.
Attorney Brittany Hinojosa Citron is a senior associate attorney at Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and trust administration. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information or to schedule a consultation with one of our attorneys, please call 781-461-1020.
June 2026
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