No one can pick their biological family, but anyone can pick a chosen family. With the right legal planning, your loved ones can be given the authority to make important decisions and be recognized in the ways that matter most.
Our laws typically revolve around biological relationships and formal legal relationships like marriage, because our legal system values clarity and structure. When relationships do not fit neatly into our legal system, or when our legal system does not support that exact relationship, protecting the chosen family members and ensuring the chosen family members can make decisions, while excluding biological family from making decisions, can still be accomplished with a little forethought and properly drafted documentation. These documents provide the clarity and structure that courts and institutions recognize and enforce, regardless of the broader legal or political climate.
For anyone living outside of a standard, statutorily prescribed family, protecting loved ones requires defining “family” and finding the legal options that best protect those relationships. Families are complicated. They may include single people, unmarried partners, multiple partners, people without children, estranged or difficult relatives, blended or stepfamilies, half-siblings, loved ones living far away, or family members facing challenges such as addiction, mental health challenges, or other health issues. Each of these relationships, whether legally recognized or not, creates unique needs when it comes to caring for (or excluding) individuals, both during life and after death. Thoughtful estate planning ensures that chosen family is not excluded from legal protections — both for themselves and for the individual creating a plan — even when state law does not fully account for nontraditional family structures.
Washington law provides a statutory framework for decision-making during a person’s life and after their death. That framework determines who may step in if someone loses capacity, covering health care, financial, or end-of-life decisions, and also dictates who inherits assets if a person dies without written documents such as Wills, Revocable Trusts, or beneficiary designations. By default, the law almost always looks first to a surviving spouse, then children, then parents, then descendants of parents. Without legal documents in place, state law will default to biological family members.
That statutory framework is often a reasonable legal supposition, but rarely accounts for the complex family issues or chosen family. When a family includes individuals outside a nuclear family or biological family, the most effective way to ensure wishes are heard and enforced is to prepare a strong, enforceable estate plan. While the state and health care providers and financial entities will ignore unwritten desired choices, contracts are legally enforceable alternatives for setting out life and death preferences, and more importantly, protecting chosen family and creating the chosen family’s legal right to make decisions on behalf of the individual creating a plan.
It may feel unusual to think of an estate plan as a type of contract, but that’s exactly how the law treats it. However, writing out intentions in Wills (or Trusts), Durable Powers of Attorney (health care or financial), Advance Directives, Disposition Authorizations, Property Status Agreements (prenups, postnups, cohabitation agreements, community property agreements, etc.), creates legally enforceable written instructions to banks, medical providers, friends and family, county records (real estate), taxing authorities, and the Courts.
To protect chosen family, a comprehensive estate plan should address both lifetime wishes and post-death goals. Basic estate plan documents, such as Wills, Durable Powers of Attorney, Advance Directives, Disposition Authorization, etc., provide a strong foundation for honoring individual wishes and empowering chosen decision-makers. A comprehensive plan can include many other practical documents or actions. Some available options include transfer on death designations or joint ownership on financial accounts (savings, checking, life insurance, retirement accounts), community or separate property agreements (in addition to prenuptial/postnuptial/cohabitation agreements), gifting, simple business entities, deeds with specific forms of co-ownership (or death transfer terms), and generally taking advantage of any legal option to get to the desired outcome. Together, these strategies help ensure those desired outcomes are achieved and recognized under the law.
Each option for planning can be layered to create the most legal protections, regardless of whether the law or political climate validates specific relationships. Further, the documents can often be tailored to create a solution that more directly reflect an individual’s intentions. However, each option carries its own legal rights, responsibilities, and consequences, as well as varying levels of privacy for decisions made during life and after death.
Discretion can also matter. Wills become part of the public record once probated, which means family details and personal choices may be accessible. Trusts, by contrast, generally remain private and can allow loved ones to carry out wishes with greater confidentiality. While not every situation calls for a trust, it can be a valuable option when privacy is important.
Protecting chosen family takes intention and effort, but creative estate planning, including tools beyond the standard approach, can safeguard individuals with complex family dynamics and the rights of their chosen family members to make decisions. Just as importantly, it can prevent unwanted decisions under the default legal framework. If family consists of the people who live in an individual’s heart and are not a biological or marital relationship recognized by standard laws, thoughtful planning can create the protections needed to honor that family.
To learn more:
Nicole K. Betts
Attorney
51 W. Dayton St., Suite 204
Edmonds, WA 98020
Main: 425-492-7212
salishelderlaw.com
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