This August: Make a Will, Because California Law Wasn't Written With Your Family in Mind
LGBTQ+ estate planning in California for National Make-A-Will Month: why wills, trusts, and health care directives matter for trans folks, chosen families, and unmarried partners.
August is National Make-A-Will Month, and if you've been putting off your estate plan, consider this your friendly (and slightly persistent) nudge. For the LGBTQ+ community, estate planning isn't just an item on a someday list. It's one of the most powerful ways to protect the people you love, especially when the law's default assumptions don't match the family you've actually built.
What Happens If You Die Without a Will in California?
Here's something most people don't realize: if you die without a will in California, the state already has a plan for you. It's called intestate succession, and it distributes everything you own according to a rigid family tree. The thing that is really wild about California intestate succession is that there are SO many ways for people you may not want to inherit to inherit from you. Here are just a few examples of what happens when you die without a will:
| When you die, what people do you have? | Who inherits and how much? |
|---|---|
| Children but no spouse |
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| Spouse but no children, parents, siblings, nieces, or nephews |
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| Parents but no children, spouse, or siblings |
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| Siblings but no children, spouse, or parents |
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| A spouse and one child or grandchild |
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| A spouse and two or more children |
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| A spouse, one child, and one or more grandchildren from a deceased child |
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| A spouse and two or more grandchildren from a deceased child |
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| A spouse and parents |
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| A spouse and siblings but no parents |
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| No relatives of any kind, including very remote relatives |
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Source: California Probate Code Sections 6400–6455.
Notice who's missing from that list? Your partner of fifteen years you never married. Your chosen family. Your best friend who showed up for every hard thing. The co-parent who has raised your child alongside you but was never legally adopted into the picture. Under California intestacy law, these people, the ones who may know you best and love you most, receive nothing. Not your home, not your savings, not a single keepsake.
This “plan” also puts minor kids in a very challenging situation. They won’t have access to their inheritance except through blocked accounts managed by a guardian the court appoints (again, someone you have no control over naming). What’s worse, your kids will receive everything outright at 18. Whether that’s $1,000 or $10,000,000, there are no guardrails to ensure your estate is preserved for your children and that it’s used in a way that best supports your kids.
And in a painful twist familiar to too many in our community, the people the law does prioritize may be the very relatives who rejected you. Estrangement doesn't remove someone from the intestacy line. Only a written estate plan does.
Community Property vs. Separate Property in California
It's also a very good example of the differences California has when it comes to what is property. California is a community property state. This only applies if you're legally married or in a state-recognized registered domestic partnership (not domestic partners registered at the local level, usually for health insurance purposes). The reason why you see the distinction between all community property to a spouse and some division of separate property between the spouse and other family members is that your separate property is your own and your spouse isn't entitled to it unless everyone else is gone (no parents, no kids, no grandkids, no siblings, no nieces or nephews). The "everyone is dead" scenario is the only way your spouse gets everything you have, if you even have a spouse!
Estate Planning for Trans, Nonbinary, and Gender Non-Conforming Folks Is Also About Dignity
Estate planning for transgender, nonbinary, and gender non-conforming people carries an extra layer of importance, because these documents don't just move assets, they speak for you when you can't speak for yourself.
A thoughtful plan addresses:
Your name and identity. If your legal documents, IDs, and records don't all match, that inconsistency can create real problems for your loved ones later. A well-drafted plan accounts for chosen names, dead names, and, ensures your assets are properly connected to you, and, just as importantly, makes clear the name and pronouns to be used in every context, from hospital rooms to memorial services. We also make sure your people who may be trans, nonbinary or gender non-conforming are respected in your plan by properly identifying who they are.
Medical care that affirms who you are. An advanced health care directive lets you name the person who makes medical decisions if you're incapacitated and lets you leave detailed instructions. These instructions can include continuing gender-affirming care, hormone replacement therapy, maintaining personal grooming and appearance standards, and specifying who is (and just as important) who isn't permitted to make decisions for you or be around you.
We also spend a lot of time tailoring custom pregnancy-related instructions for people who have the ability to become pregnant. Without a directive, those decisions may default to next of kin, which for some of us means handing the microphone to someone who never accepted us.
Your final arrangements.Your plan can state exactly how you want to be memorialized, your name, your presentation, your wishes. LGBTQ+ people, especially our trans family members, have their identities erased at their own funerals by unsupportive relatives.
Ensuring you're naming people who will do their damnedest to make sure you're taken care of in life and honored in death is something we don't mess around with here.
Chosen Families and Non-Traditional Families Need Extra-Intentional Planning
Chosen family, unmarried partners, polyamorous households, platonic co-parents, single parents relying on close friends, these families are real, and they deserve estate plans built for how they actually function. A few tools do heavy lifting here:
A will and trustdirects your assets to the people you choose, whether or not the law would ever have picked them. A trust adds privacy and keeps your loved ones out of probate court, a public, often lengthy and expensive process that can invite challenges from disapproving relatives. For most families in California, a will-only plan is just a one-way ticket to probate. It's great because you can change the default settings of who will inherit, but there are a lot of pitfalls to only using a will-based plan.
Temporary and permanent guardianship nominations tell the court who should raise your children if something happens to you. For families where a co-parent lacks formal legal ties to a child, this document can be the difference between your child staying with the parent they know and a custody fight with family-in-name-only relatives.
Powers of attorney and health care directives hand decision-making authority to your person. This person is someone you know, love, and trust to ensure your finances and health are taken care of, to the exclusion of everyone else. Don’t have a person like that? That’s ok, there are professionals whose only job is to support you with these things and who will also be a fierce ally and advocate for you. We recognize not everyone has family they trust or chosen family who are up to the task for these jobs.
Without these documents, your person may find themselves in court trying to conserve you and fighting against people who may not have your best interest in mind but may be given priority because they are blood relatives. Even if you have a decent relationship with your blood family, they might not be the ones you'd want to handle these things for a variety of reasons.
Marriage Equality Helped. It Didn't Finish the Job.
Marriage extends important legal protections, but it was never a complete estate plan. Plenty of us aren't married, don't want to be, or have families that marriage law simply doesn't describe. Your estate planning documents are the protections you control, signed and enforceable, regardless of what happens in courts or legislatures. In uncertain times, that certainty matters.
Make This the Month You Make Your Will
An estate plan is, at its heart, a love letter with legal teeth. It says:
I chose you. I planned for you. You are my family, and I made sure the world would have to honor that.
If you've been waiting for a sign, National Make-A-Will Month is a pretty good one. Whether you're starting from scratch or dusting off documents from a different chapter of your life, I'd be honored to help you build a plan that reflects your whole self and your whole family.
Your family is real. Your plan should be too. Let's get it done.
Your Home Legal, APC provides inclusive estate planning for LGBTQ+ individuals, chosen families, unmarried partners, co-parents, and single people throughout California. This post is for general information only and isn't legal advice. Every family is different, and your plan should be too.
