A friend recently sent me the following email (with some particulars changed to protect the identity of the parties):
The niece of a friend of mine is currently struggling with a potential probate dispute. Her fiancé is currently unconscious and near death in a Boston hospital. He apparently never made a will. Before losing consciousness, he identified her as his health care proxy, but did not otherwise express any post-death preferences.
The fiancé‘s mother and two siblings live in Idaho, are estranged from my friend’s niece and want to bury the fiancé in Idaho. Does the my friend’s niece have any rights regarding the location of the burial or the administration of the impending estate?
Unfortunately, the fiancé has no rights under the law. It’s fortunate that her fiancé named her on his health care proxy, so that she can be involved in his medical care. Otherwise, she would have no legal rights in that arena either.
Under Massachusetts law, fiancés, partners, boyfriends, girlfriends, or just good friends have no more legal relationship than do strangers. Spouses, children and parents do have legal standing, especially with regard to estates. Absent a will, the property will pass to them under the rules of intestacy and they can petition the probate court to begin a probate administration. Others cannot unless they have been appointed under the individual’s will.
This is also true of burial arrangements. Absent a will or an already executed funeral contract, family members may make burial decisions. Massachusetts regulations provide the following priority list for who can be in charge:
- the surviving spouse of the deceased;
- the surviving adult children of the deceased;
- the surviving parent(s) of the deceased;
- the surviving brother(s) or sister(s) of the deceased;
- the guardian of the person of the deceased at the time of his or her death;
- any other person authorized or obligated by law to dispose of the remains of the
deceased.
Prior to the ability of gay and lesbian couples to marry, the situation my friend’s niece is experiencing occurred relatively often. Estranged family members of an ill partner would swoop in and take over, sidelining the person with whom the ill or deceased person shared their life. Fortunately, these couples can marry now.
However, if you’re not married and you don’t want your family to be making decisions for you, whether those are for health care, finances or funeral arrangements, the only way to make sure that the person you choose will be the one to step in is to execute basic estate planning documents. These should include a durable power of attorney, a health care proxy and a will. Then your choices will be honored and the people you love from additional heartache.