Chosen Family and Death: Who Has the Right to Make Decisions?

For many people, the family that shows up is not the family the law recognizes. A partner of twenty years who isn’t married, a close friend who has been the only caregiver, a chosen family of friends: the law’s defaults weren’t built for them. This guide explains what the defaults are, using Texas as a worked example because the statutes can be read directly, and how a few signed documents can change the outcome. Other states have different rules; check yours.

What does the law assume if you do nothing?

It assumes relatives. That plays out in three places, and each one is governed by a different law.

1. Medical decisions while you’re alive but can’t speak. Texas’s Consent to Medical Treatment Act says that if an adult patient in a hospital or nursing home is incapacitated and has no legal guardian or medical power of attorney agent available, an adult surrogate may consent, in order of priority: the patient’s spouse, adult children, parents, or nearest living relative. A friend or unmarried partner isn’t on the list. Disputes over who may act as surrogate go to a probate court.

2. Funeral and burial decisions after death. Under Texas Health and Safety Code § 711.002, unless the person left written directions, the right to control disposition belongs, in priority, to the person designated in a written instrument signed by the decedent, then the surviving spouse, then any one of the adult children, either parent, any one of the adult siblings, executors or administrators, and finally an adult in the next degree of kinship. Unmarried partners and friends aren’t in that line unless named.

3. Inheritance. Texas’s intestacy rules provide only for spouses and relatives by blood or adoption, so, as Nolo puts it, unless you name an unmarried partner in a will, living trust, or other estate planning tool, they won’t inherit from you. See what happens if you die without a will.

Which documents change that?

Need	Document	What it does
Medical decisions	Medical power of attorney (health care proxy)	Names the person who makes health care decisions if you can’t. In Texas it’s valid if you sign before a notary or before two competent adult witnesses; witnesses can’t be your agent or related to you by blood or marriage
Access to medical information	HIPAA authorization	Lets providers share information with the person you designate. Aging-advocacy guides list it alongside the proxy
Funeral and remains	Appointment of agent to control disposition of remains	Names who controls burial or cremation. In Texas the agent and any successor sign an acceptance, and the appointment takes effect on death
Money and property decisions while alive	Durable financial power of attorney	Names someone to handle finances if you can’t
Inheritance	Will or trust	Directs who gets what; a partner or friend can inherit only if named
Accounts and policies	Beneficiary designations	Pass retirement accounts, life insurance, and payable-on-death or transfer-on-death accounts directly, outside probate

The LGBTQ Aging Center’s list of documents every LGBT older adult needs includes the medical power of attorney, a financial power of attorney, a funeral directive, a hospital visitation directive, and a living will, and cautions that state laws vary widely and an attorney is advisable. See LGBTQ+ elders and end-of-life planning.

What about hospital visits?

Visitation is a separate, federal rule. Hospitals that take Medicare or Medicaid must have written visitation policies, must tell patients they can designate who may visit, and cannot restrict visitation based on sexual orientation or gender identity (among other characteristics), according to CMS guidance implementing 42 CFR 482.13(h). A patient may also name a “support person,” who may be a family member, friend, or other individual, to exercise the visitation rights if the patient can’t. But visitation rights are not decision-making authority. See hospital visitation and medical decisions for unmarried partners.

What if there’s a conflict with relatives?

Without documents, relatives usually control. The Administration for Community Living notes in its LGBTQ+ older adults brief that legal challenges can still arise around inheritance rights, health care decision-making, and recognition of chosen family relationships, and that advance planning documents can help older adults keep control over their choices and may help avoid the need for guardianship. Signed documents are far harder to challenge than verbal wishes.

For funeral decisions, Texas also sets a deadline: if the person with the right to control disposition doesn’t make final arrangements or appoint someone by the earlier of the sixth day after learning of the death or the tenth day after the death, the person is presumed unable or unwilling and the right passes to the next person in line.

How do I make this real?

1. Choose your people, including backups. Ask each whether they’re willing
2. Complete the documents in your state. Many states have free statutory forms, such as Texas’s funeral-agent appointment; see advance directives, living wills, and healthcare proxy
3. Sign them correctly: notary or witnesses where required, and acceptance signatures where the form calls for them
4. Give copies to your agents, your doctor, and your hospital; tell your relatives where they are
5. Update beneficiary designations and consider a will or trust
6. Review after life changes, and see an attorney, especially if you expect a challenge from relatives; see right of disposition

Where can I find help?

SAGE’s National Resource Center on LGBTQ+ Aging and Lambda Legal publish planning guides, and legal aid and bar association referral services can connect you with an attorney. The same principles help anyone whose closest people aren’t legal relatives: friends, unmarried partners, and neighbors who serve as caregivers.

This is general educational information, not legal advice. Texas law is used as a worked example and was checked on October 7, 2026; other states have different rules, and laws change. An attorney can prepare documents that are valid and effective where you live.