When someone dies, the people closest to them aren’t always the immediate family. Those who know the deceased best and who will be able to most accurately speak to their final wishes aren’t always even blood kin. In these death planning cases, a decedent’s friends, distant relatives, non-biological children, or chosen family could be the people that have the most accurate understanding of what the decedent’s last wishes were and how to properly honor them in death. However, without a last will and testament, a legally appointed power of attorney, a pre-planned and pre-paid arrangement with a funeral home, or some other formailized death plan, individuals with unconventional family structures could run the risk of their wishes going unrealized, or worse, after their death.
Unfortunately, few people are aware of the lack of protections in place for individuals without a last will and testament. According to research from Gallup, only 41% of Americans had a will as of 2016, down from 51% in 2005. Not having official last wishes in place can make the death planning and grieving process difficult for non-traditional families, especially members of disenfranchised populations like the LGBTQIA2S+ community. Working to educate our communities about the importance of having a will can go a long way towards advocating for a good death for everyone, especially those of us with a chosen family.
Who is Affected When There Isn’t a Will?
Family structures today are more diverse than ever, and next of kin laws, or “intestacy laws” don’t have contingencies for non-traditional families when a will is not in place. An article from the Atlantic explains some of the different family structures that could be left vulnerable and unprotected from the law if a loved one dies without a will in place, “Legislators designed current intestacy laws in the mid-20th century to approximate whom they thought the typical American would choose as their heirs. Yet in the decades since, the average family has undergone a radical shift, today comprising people who have children from prior relationships, unmarried partners, or non-biological children (for instance, a grandmother or close family friend raising a kid). Today, nontraditional families that don’t have wills, in particular, can be thrust into a cruel legal limbo when a loved one dies.”
Many people go through life relying on close familial bonds with individuals that aren’t related by blood. Without a will, an advance directive, or clear pre-arrangements with a funeral home in place, those that are closest to the deceased may not be able to have a say in how their loved one is memorialized, laid to rest, or how assets are divided. Individuals from any background can experience separation and alienation from biological relatives, or the “next of kin” that intestacy laws legally designate. It’s common for people to have close relationships with individuals who are non-biological relatives. Instances like children from prior marriages, unofficially adopted step-children, and domestic partnerships are also at risk when there is no will or advance directive in place. Additionally, many people have been the victim of abuse, neglect, abandonment, interpersonal issues and disagreements, or any number of things that could lead to long term and complicated separation from the biological family of origin. Folx in BIPOC and LGBTQIA2S+ communities are particularly vulnerable and unprotected under current intestacy laws.
What is “Chosen Family”
Though America’s death denying tendencies are changing, that change is slow. There are too few conversations around death in general as a result of death care having been removed from the home and privatized into a highly regulated capitalist industry for over a century. An unfortunate repercussion of our death avoidant society today is that very few people think ahead about who they want to be in charge of their final arrangements, which can lead to disputes, difficulties, and even harmful situations. This is an area in which language like the term “chosen family” could be beneficial for funeral professionals and funeral planners alike to become familiar with.
“Chosen family” might be a new term for some, but it’s a concept that has existed for decades in many BIPOC cultures as well as the LGBTQIA2S+ community. According to an article from Healthline, “Also known as found family, a chosen family is made up of people who have intentionally chosen to embrace, nurture, love, and support each other regardless of blood or marriage,” says Bahiyyah Maroon, PhD[…] The concept of chosen family is purposefully expansive because it exists to expand the rigid definition of what society typically understands “family” to be. Maroon says the concept has existed for a long, long time. For [BIPOC communities], she says, there’s a long history of children finding new ‘parents’ when their biological parents were enslaved or killed.”
Furthermore, the paper, “Navigating ‘Chosen Family’ in the Context of Health, Illness, and the Mutual Provision of Care amongst Queer and Transgender Young Adults” explains that, “Chosen family” is a term employed within queer and transgender (Q/T) communities to describe family groups constructed by choice rather than by biological or legal (bio-legal) ties.” For many queer folx, estrangement from one or more family members is common, and chosen family fills the roles of next-of-kin and emergency contact in day-to-day life. As stated previously, there are many groups outside of the LGBTQIA+ population who also have family structures and situations that fall outside the legal guidelines for next of kin rights, but is especially important for those serving or aiding queer and trans individuals. Ultimately, chosen-family needs to become a larger part of the conversation in typical death planning, in order to make end of life care a more equitable and inclusive space for all families.
Separate article???:
The Importance of Death Planning for LGBTQIA+ Individuals
The need for explicit death planning and preparation is especially necessary in the LGBTQIA2S+ community. This article from Cruse.org explains that, ”Members of the LGBTQ+ community are more likely to be estranged from their relatives and instead rely on a close network of friends. This is often referred to as a “chosen family.” Families of origin may not accept this friendship network and exclude them from funeral planning or memorializing the person. It’s important that all those who were close to the person are included in the grieving process and are able to pay their respects.”
This article from Every Queer expands on and reveals why death planning and designating power-of-attorney or a will executor is vitall important for queer people of all ages:
“End-of-life care is a hard topic that’s made especially harder for gender nonconforming, genderqueer, and trans folks. LGBTQ+ patients face the possibility of discrimination in healthcare, and difficult situations can be exacerbated if you aren’t close to, or are estranged from, your blood relatives, and have not designated another person to carry out your wishes. If your relatives disrespect you by misgendering you, and generally not honoring your wishes, you won’t want them making critical decisions on your behalf.”
Trans Death in Particular
It’s an unfortunate reality that violence against the trans community is continuing to rise. This article from Time reveals that 2021 was the deadliest year for transgender and gender non-conforming people in the U.S. on record. At least 50 trans and gender non-conforming people were killed this year alone, per a report by LGBTQ advocacy organization the Human Rights Campaign (HRC)—the highest number of deaths since the organization began recording fatal violence in 2013.
Tragically, trans folx are also commonly misgendered or “nonconsensually degendered” posthumously due to outdated intestacy laws about family, next of kin, and death planning that do not take into account who was actually closest to the deceased. According to this article, for trans and non-binary people, there are a number of barriers to acquiring legal documentation that reflects their gender identity. In death, this can lead to healthcare workers or funeral practitioners misgendering or “deadnaming” them (calling them by a name they used before they transitioned). For friends and family, this can be particularly distressing at a time when they are most vulnerable.
Furthermore, transgender folx who pass away without first securing a will, or to use a legal term, die “intestate” can be at higher risks for non-consensual degendering after death, misrepresentation of identity during memorial services, last wishes going unfulfilled etc. According to this article, by lawyer Delaney Naumann “Dying intestate is particularly troubling for the transgender community, whom face the risk of having their family members not burying them according to gender identity.”
While laws protecting gender identity after death vary state by state and are generally slow to take off, there are some leading examples in the US that are helping protect trans folx’s rights to gender identity after death. This article by lawyer Delaney Naumann, explains,
“Nevertheless, there are two legal solutions that can simplify the task of planning for death and help ensure gender identity is respected after death: disposition of remains statutes and the Respect After Death Act (RADA)[…] In passing the RADA, California became the nation’s leader in death certificate alteration. The RADA requires a death certificate to reflect a decedent’s sex based on gender identity. An informant “who is in the best position to know” the decedent’s chosen gender gives input to determine the gender that is placed on the death certificate.85 If there is a disagreement and a dispute arises, the decedent’s most recent gender identifying documentation determines gender.86 The progressive act helps ensure the respectful burial of people according to their gender identity. Additionally, Washington D.C. followed California’s lead by proposing the Death Certificate Gender Identity Recognition Amendment Act of 2015; the 2015 Amendment furthers the goal of respecting decedents’ gender identity upon death by amending their laws to contain similar provisions to those of California.”
Steps the LGBTQIA+ Community Can Take
With the threat of violent death ever-present for the Trans community, it’s vitally important that funeral professionals and lawmakers take the concept of chosen family into account in order to make funerals, memorials, disposition and all aspects of death planning a more equitable space for the LGBTQIA2S+ community moving forward. It is also important for members of the LGBTQIA2S+ community to be proactive in making secure and legally binding arrangements for themselves, and encouraging their loved ones to do the same.
Trans Death Care offers the following advice for LGBTQIA+ individuals who want to prepare for their own deaths and ensure dignity and legal protection:
Making a legal advance directive, designating power of attorney, and going through legal processes can take a long time, but is so worth it to protect yourself and your chosen loved ones. Take the time to contact local attorneys and find out the exact steps you need to take in your state to set up your end of life plans. Death Curious has an online ecourse (free for the 2SLGBTQIA+ community!) that can help get you started to securing your end of life plans.
Steps Your Local Funeral Home Can Take for Your Community
Host information sessions about pre-planning and arrangements in your local community. Nursing homes are an obvious location, but reaching younger communities is also important, as older generations are more likely to have wills already. Events at community centers, churches, or even hosted at local coffee shops or bars could reach populations that wouldn’t normally think of walking into a funeral home for pre-planning.
If you are a funeral professional who needs consulting and/or training: take the Death Curious ecourse on Trans Needs at End of Life!
Additionally, providing resources to families with nontraditional family structures whose deceased loved one did not have a will in place, about what rights they have in your state, and encouraging your staff to take CE courses in conflict resolution will also go a long way.
