Love makes a family. But when it comes to legal rights, love alone doesn’t always provide the protections you might expect.
For LGBTQ+ couples and families, estate planning is about more than deciding who inherits your property. It’s about making sure the people you love can make decisions for you, care for your children, and carry out your wishes when you cannot speak for yourself.
Marriage equality has been the law nationwide since the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges. Yet questions about the future of LGBTQ+ legal protections continue to make headlines. The Supreme Court’s 2022 decision overturning Roe v. Wade also prompted renewed discussions about the future of other constitutional rights, including marriage equality.
As of October 2026, Obergefell remains in effect, and same-sex marriages continue to be legally recognized throughout the United States. The federal Respect for Marriage Act also provides important protections for the recognition of valid marriages, although it does not guarantee that every state would continue issuing marriage licenses if Obergefell were overturned.
But here’s something worth remembering: Even when your marriage is legally recognized, marriage alone is not a complete estate plan.
And if you and your partner aren’t married, the need for thoughtful planning can be even greater.
Whether you’re married, in a long-term relationship, raising children together, or building a family that doesn’t fit traditional definitions, having the right legal documents in place can make an enormous difference.
Here are answers to some of the most common questions about LGBTQ+ estate planning in Texas.
My Partner and I Are in a Domestic Partnership, but We’re Not Married. Do We Have the Same Legal Rights as Married Couples?
Not necessarily.
Domestic partnerships and civil unions can provide certain protections in jurisdictions that recognize them, but those protections vary considerably. Texas does not provide a statewide domestic partnership or civil union status equivalent to marriage.
Some local governments and employers may recognize domestic partnerships for limited purposes, such as employee benefits. However, that recognition does not automatically give unmarried partners the same inheritance, property, or medical decision-making rights as spouses.
Federal law also treats marriage differently from domestic partnerships and civil unions for many important purposes, including federal income taxes and certain Social Security benefits.
If you and your partner have chosen not to marry, you can still create meaningful legal protections through a comprehensive estate plan.
For example, you can name your partner as a beneficiary of your assets, authorize them to make healthcare decisions, give them financial decision-making authority, and designate them to handle your final arrangements.
An estate plan cannot recreate every legal benefit of marriage, but it can help close many of the gaps that unmarried couples face.
The important thing is making those decisions intentionally rather than assuming your relationship will automatically be recognized when it matters most.
We’ve Been Together for Years but Aren’t Married. What Happens If One of Us Dies Without an Estate Plan?
Imagine you’ve spent 15 years building a life together. You share a home, split the bills, celebrate holidays with each other’s families, and consider yourselves partners in every sense of the word.
Then something unexpected happens.
If your partner dies without a will or other estate planning arrangements, Texas intestacy laws determine who inherits assets that pass through the estate.
And those laws don’t necessarily recognize the family you’ve built.
In Texas, an unmarried romantic partner generally has no automatic inheritance rights under intestacy law. Instead, assets may pass to the deceased partner’s children, parents, siblings, or other legally recognized relatives.
This can create particularly difficult situations when the surviving partner has an uncomfortable or strained relationship with the deceased partner’s family.
Consider a home you’ve shared for years. If the property is titled solely in your partner’s name and passes to their relatives, you could find yourself facing uncertainty about whether you can continue living there.
The outcome depends on how the property is owned, whether there are beneficiary or survivorship arrangements, and other legal considerations.
The same concerns apply to bank accounts, investments, vehicles, and other assets.
A comprehensive estate plan can help protect your partner by addressing who inherits your property, how assets will be transferred, and whether a trust or other planning strategy would be appropriate.
One important Texas-specific consideration: Texas recognizes informal, sometimes called common-law, marriage when certain legal requirements are met. However, simply living together for a particular number of years does not automatically establish a marriage.
If you intend to remain unmarried, it’s especially important to document your wishes rather than leave your partner’s future to assumptions.
What Happens If My Partner Becomes Incapacitated?
Estate planning isn’t only about what happens after death.
In many ways, planning for incapacity can be just as important.
Suppose your partner is seriously injured in an accident or experiences a medical emergency that leaves them unable to communicate.
Would you be able to speak with their doctors? Make decisions about their treatment? Access funds to pay the mortgage or other household expenses?
Without the proper legal documents, the answers may not be what you expect.
Under Texas law governing medical treatment decisions, when an incapacitated adult has no available medical power of attorney agent or guardian, certain medical treatment decisions may fall to legally recognized family members in a specified order. An unmarried partner is not automatically included in that statutory priority list.
That could mean a parent, adult child, or other relative has decision-making authority instead of the person who knows your partner best.
A similar problem can arise with financial matters. Even if you share household expenses, you generally cannot access accounts held solely in your partner’s name or manage their property simply because you’re in a relationship.
And while married spouses have certain legal protections, they don’t automatically have unlimited authority over each other’s separate financial accounts or every healthcare decision.
This is why incapacity planning should be part of every adult’s estate plan, regardless of marital status.
What Legal Documents Should LGBTQ+ Couples Have to Plan for Incapacity?
A well-designed incapacity plan identifies who you trust to make decisions and gives that person the appropriate legal authority to act.
Several documents are especially important.
Medical Power of Attorney
A medical power of attorney allows you to designate someone to make healthcare decisions for you if you become unable to make those decisions yourself.
You can name your spouse, unmarried partner, trusted friend, or another eligible adult.
In Texas, a medical power of attorney generally becomes effective when your physician certifies in writing that you cannot make your own healthcare decisions.
Durable Financial Power of Attorney
A durable financial power of attorney allows someone you choose to handle financial and property matters on your behalf.
Depending on the authority granted, that person may be able to pay bills, manage bank accounts, handle real estate transactions, or address other financial obligations.
The document can be structured to take effect immediately or upon a specified future event, and the authority can continue during incapacity.
Directive to Physicians
Often called a living will, a Directive to Physicians allows you to express your wishes about certain life-sustaining treatments if you develop a qualifying terminal or irreversible condition.
This helps your loved ones and medical providers understand your preferences when difficult decisions arise.
HIPAA Authorization
A HIPAA authorization can allow designated individuals to access protected medical information.
Although a healthcare agent may have access to relevant information when authorized to act, a separate HIPAA authorization can provide additional clarity about who may receive information and under what circumstances.
Declaration of Guardian in the Event of Later Incapacity
Texas law also allows adults to express their preferences about who should, or should not, serve as their guardian if a court determines that guardianship becomes necessary.
This can be particularly important if you’re concerned that certain relatives may not respect your relationship or personal wishes.
Together, these documents can help ensure that the people you trust have the authority and information they need to support you.
We’re Married and Both Have Wills. Isn’t That Enough?
Having wills is an important first step, but it may not be a complete estate plan.
A will generally directs how certain property will be distributed after death. It does not authorize someone to make healthcare or financial decisions for you during incapacity.
And in Texas, property passing under a will generally requires some form of probate proceeding before the will can be given legal effect.
Texas offers several probate procedures, and not every probate case is lengthy or expensive. However, probate can become more complicated when family members disagree, assets are difficult to locate, or someone challenges the estate plan.
For LGBTQ+ couples whose relationships may not be supported by every family member, minimizing opportunities for conflict can be an important planning goal.
A revocable living trust may be useful in certain circumstances.
When properly created and funded, a living trust can allow assets held in the trust to be managed during incapacity and distributed after death without requiring those assets to pass through probate.
But there’s an important distinction: Creating a trust is only part of the process. Assets must also be properly coordinated with the trust for the plan to work as intended.
A trust is not automatically the best solution for every family. And a standard revocable living trust generally does not protect your own assets from your creditors during your lifetime.
The right approach depends on your assets, family circumstances, goals, and the level of protection you’re trying to achieve.
A thoughtful estate plan may include wills, trusts, powers of attorney, beneficiary designations, and other documents working together.
The goal isn’t to collect as many legal documents as possible. It’s to make sure the documents you have actually accomplish what you want.
How Can I Make Sure My Unmarried Partner Handles My Funeral Arrangements?
This is one of those questions many couples never think to ask until it’s too late.
In Texas, the law establishes an order of priority for who has the right to control the disposition of a deceased person’s remains.
Without a valid written designation or other applicable directions, that authority generally passes first to a surviving spouse, followed by certain family members.
An unmarried partner does not automatically receive that authority simply because the relationship was long-standing or committed.
If you want your partner to make decisions about burial, cremation, or other final arrangements, you can execute an Appointment for Disposition of Remains.
This Texas legal document allows you to designate the person who will control the disposition of your remains and provide specific instructions about your wishes.
It must meet applicable legal requirements to be effective, as outlined in Texas Health and Safety Code Section 711.002.
This planning can be especially meaningful when family members disagree about a relationship, religious traditions, or the way someone wishes to be remembered.
Having your wishes documented can spare your partner unnecessary conflict during an already emotional time.
We’re Raising Children Together. How Can We Protect the Rights of a Non-Biological Parent?
For LGBTQ+ families with children, this may be one of the most important estate planning questions of all.
A parent can be involved in every part of a child’s life, from midnight feedings and school pickups to doctor’s appointments and bedtime stories, without necessarily having an established legal parent-child relationship.
That distinction matters.
If a non-biological parent has not established legal parentage, they may face challenges asserting parental rights if the other parent dies, becomes incapacitated, or the relationship ends.
Marriage to a child’s biological parent does not, by itself, resolve every parentage question.
Depending on the family’s circumstances, adoption or another legally recognized parentage process may provide important protections.
For some families, a stepparent or second-parent adoption may be an appropriate option. The availability and requirements of these procedures depend on the circumstances, so it’s important to consult an attorney experienced in Texas family law and LGBTQ+ parentage matters.
Estate planning documents can provide additional protections, but they are not a substitute for legally establishing parentage.
For example, a biological or legal parent can use a declaration of guardian to nominate someone they want to care for their child if guardianship becomes necessary.
Our Kids Protection Plan® can also help families document their preferences for children’s care, identify trusted caregivers, and provide important instructions in an emergency.
However, a guardianship nomination does not automatically give someone parental rights, and a court may need to determine whether the proposed arrangement is legally appropriate and in the child’s best interests.
Families may also benefit from reviewing beneficiary designations, trusts for minor children, emergency contact information, and other planning documents.
For parents, the goal is to reduce uncertainty and make sure the people who care for their children have the strongest legal foundation possible.
What If Our Families Don’t Support Our Relationship?
Not every LGBTQ+ person has a supportive relationship with their biological family.
Some have spent years building a chosen family of partners, friends, and loved ones who provide the emotional and practical support traditionally associated with relatives.
But the law doesn’t automatically recognize every chosen family relationship.
Without proper planning, people you would never choose to make decisions for you may have legal authority over your medical care, property, or final arrangements.
That doesn’t mean a family dispute is inevitable. It means you should be deliberate about documenting your wishes.
You can name trusted individuals to make decisions, provide for the people you love, and identify who should be involved if you become incapacitated.
You can also work with an attorney to ensure your documents are properly executed and structured to reduce opportunities for confusion or legal challenges.
No estate plan can guarantee that someone won’t file a lawsuit or challenge your wishes. But careful planning can provide stronger evidence of your intentions and help your loved ones navigate difficult circumstances.
And remember, your chosen family deserves consideration in your estate plan, whether or not you’re married or have children.
When Should LGBTQ+ Couples Review Their Estate Plans?
An estate plan shouldn’t be something you sign once and forget about.
Relationships evolve. Families grow. Assets change. And laws can change, too.
It’s a good idea to review your estate plan after major life events, including getting married or divorced, entering a new relationship, having or adopting a child, buying a home, moving to another state, or experiencing a significant change in your financial circumstances.
You should also revisit your plan if someone you’ve named as a beneficiary, executor, trustee, guardian, or power of attorney agent is no longer the right person for that responsibility.
And if your plan was created years ago, it’s worth having an attorney review it to determine whether it still reflects your wishes and works under current law.
For LGBTQ+ families, reviewing legal parentage, healthcare decision-making authority, and beneficiary designations can be particularly important.
Your Family Deserves a Plan That Reflects Your Life
Your family may look different from someone else’s. Your relationships, values, and priorities are uniquely yours.
Your estate plan should reflect that.
Whether you’re married, unmarried, raising children, or building a life with your chosen family, you deserve to know that the people you love are protected and that your wishes will be respected.
At Misteli Law Firm, we believe estate planning should be about more than preparing documents. It’s about understanding your life, your relationships, and what matters most to you.
Through our Life & Legacy Planning® process, we help you understand what would happen under your current plan, including the default rules that apply if you have no plan at all. Then we work with you to create a plan designed to protect the people you love, minimize unnecessary court involvement and conflict, and preserve the legacy you want to leave behind.
You shouldn’t have to rely on assumptions when it comes to protecting your family.
Contact Misteli Law Firm to schedule a Life & Legacy Planning® Session and take the next step toward protecting your partner, your family, and your future.
For more on Texas estate planning, and to learn about estate planning lawyer Tom Misteli and The Misteli Law Firm, visit www.mistelilaw.com.
