When an unmarried partner of twenty years dies suddenly in Brooklyn without a will, the surviving partner inherits exactly nothing. The next morning, the legal right to administer the estate, claim the assets, and even arrange the funeral defaults to the deceased’s biological family—often the exact relatives who estranged themselves decades ago. Surrogate’s Court does not measure the depth of your devotion, the duration of your relationship, or the promises you made to each other in private. It measures legal status. For members of the LGBT community, relying on default legal structures invites tragedy. Estate planning is the fundamental way we protect our chosen families from unintended legal outcomes.
The Risk of Statutory Defaults for Unmarried Partners
New York law operates on rigid, traditional assumptions about family hierarchy. If you die without a will, the state distributes your assets according to New York Estates, Powers and Trusts Law (EPTL) § 4-1.1. This statute dictates that your property flows strictly down bloodlines or to a legally recognized spouse. If you are unmarried, the law looks directly to your parents, your siblings, or your distant cousins to inherit your estate.
For many LGBT individuals, family is a conscious, deliberate creation rather than a biological accident. Yet, the law does not recognize a “chosen family” in intestacy. I have watched estranged biological parents step into court and legally claim the entirety of a deceased child’s estate, while the surviving partner is forcibly locked out of the home they shared. Handshake promises and informal agreements cannot override these statutory mandates. To prevent this outcome, you must write your own rules. A meticulously drafted estate plan overrides the state’s default settings, replacing blind statutory assumptions with your explicit intent.
Shielding Your Legacy from Will Contests
Many people assume writing a simple will is enough to secure their legacy and protect their partner. However, a will must pass through probate—a highly public process. This public venue opens the door to challenges from the very relatives you intended to disinherit.
Under the Surrogate’s Court Procedure Act (SCPA) § 1410, any individual whose financial interest is adversely affected by the admission of a will to probate has legal standing to file objections. In practice, this means if you leave your entire estate to your same-sex partner or a close friend, your biological parents or siblings—who would have otherwise inherited under the default intestacy rules—have the right to contest your will. They can allege undue influence or lack of capacity, tying up your assets in costly litigation for years. A contested probate proceeding forces your grieving partner to defend the validity of your relationship in open court, subject to depositions and grueling evidentiary discovery.
In cases like this, we typically consider revocable living trusts rather than relying solely on a will. A trust acts as a private custodian of your wealth. Because it operates outside of probate, it does not require notifying estranged biological family members, nor does it invite their scrutiny. The trustee you appoint manages the assets bound by a strict fiduciary duty, transferring your wealth quietly and directly to the beneficiaries you actually chose.
Medical Directives and Living Protections
Estate planning is as much about managing your life during incapacitation as it is about directing your assets after death. If a severe illness or accident leaves you unable to communicate, medical professionals will immediately look for a legal proxy to authorize treatments.
Without deliberate planning, an unsupportive biological relative might petition the court to become your guardian, gaining absolute authority to dictate your medical care and potentially isolate you from your partner. By executing a Health Care Proxy, a HIPAA release, and a durable Power of Attorney, you legally designate the individuals who hold the right to make medical and financial decisions on your behalf. These documents strip away all ambiguity. They command hospitals, doctors, and financial institutions to listen to the people you trust, rather than the relatives the state assumes you want in the room.
Considerations for Legally Married Same-Sex Couples
Marriage equality fundamentally shifted the legal landscape, granting married same-sex couples the same statutory protections as heterosexual couples. However, a marriage certificate does not eliminate the need for prudent generational planning.
If you and your spouse have children—particularly if only one parent is biologically related to the child—establishing legal permanence becomes critical. While New York law has evolved significantly to protect non-biological parents, cross-border travel or relocation to states with different legal interpretations can still expose your family to risk. Naming legal guardians, establishing trusts for minor children, and securing clear, documented custodial rights for both parents protects your family unit against jurisdictional whims.
Leaving assets outright to a surviving spouse exposes that wealth to future creditors, subsequent marriages, or unforeseen long-term care costs. To prevent this, we typically consider spousal trusts that provide financial support for the surviving spouse during their lifetime, while preserving the remaining principal for the next generation or the charitable causes you care about most.
Stewardship.
The default legal structures were not designed with the LGBT community in mind, and they frequently fail the people who rely on them blindly. You cannot afford to leave your legacy to chance or statutory defaults. Take concrete action to formalize your intentions and protect the people you love. Schedule a beneficiary audit of your existing financial accounts and a review of your current advance directives with our Madison Avenue office to confirm your chosen family is legally secured.
