Queer Death History: How Same-Sex Adult Adoption Safeguarded End-of-Life Rights

If you have lost a romantic partner, you know how heartbreaking and harrowing the experience is. Not only is the emotional toll something that can feel never-ending, but the logistics of handling assets, belongings, and family relationships can further complicate those feelings. If you’re married to that partner, things can at least be logistically easier: bank statements, trusts, and even final decisions at the end of their life will likely be appointed to you as their legal spouse. For queer couples however, this was not always an option.

When a loved one dies, depending on the documents they have completed before death (advanced directives for example), the decisions made for them goes to their next of kin. For many queer and trans people, this might mean the decisions go to a family member that does not accept them for who they are.

Same-sex marriage (a term that feels outdated now) was made legal in Canada in 2005. It took an entire decade until the US Supreme Court lifted all bans in the US. Before having this option, queer couples who needed to take care of one another at the end of their lives had to settle on their best alternative legal option – adult adoption.

Queer Death History: How Same-Sex Adult Adoption Safeguarded End-of-Life Rights

The History of Same-Sex Adult Adoption 

The earliest evidence of a same-sex adult adoption was in the late 1800s. The practice became prevalent in the 1980s during the rise of the AIDS epidemic. Adult adoption was a way for queer couples to be legally recognized as family.

Zena Sharman, LGBTQ+ health activist, in her Queering Death series, writes that “the AIDS crisis was a formative experience for queer and trans communities and continues to be in many ways, including through the formation of community care practices around death and dying.”

 By having a legal relationship with their partner, they could ensure they were honored in their death. 

“Whether that’s about forming hospices or other community care practices to care for people who are dying and who might be excluded from or not able to access care through dominant systems, or through activism around things like appointing healthcare decision-makers and making sure that people’s chosen kin were able to care for them at end-of-life, and also to be recognized as their family members after their deaths,” Sharman writes.

Adult adoption gave queer couples the legal rights to inheritance, medical and end-of-life decisions, and a legal declaration of the commitment of their relationship before they were allowed legal marriage. By having a legal relationship with their partner, they could ensure they were honored in their death in a way that celebrated the real lives they lived. An example of the transphobia that occurs so often when trans people die is Donna Mae Stemmer’s story, which we wrote about in our Trans Death and Advocacy article.

While alternatives such as domestic partnerships and civil unions existed in some States, they were inaccessible to many and did not provide the same legal protections as adult adoption.

Obviously adult adoption would prove to not be a perfect plan either.

Inheritance Laws and Queer Adoption

Inheritance and family dynamics can be one of the most difficult things to navigate when a loved one dies. To finalize an adoption, the adoptee was legally removed from their birth families which meant that they could not claim inheritance within that family unit, and families could no longer claim inheritance of that individual. According to queer educator Jessica Kellgren-Fozard, “The stigma of homosexuality at the time [of same-sex adult adoptions] meant that wills made by homosexual individuals were more likely to be successfully challenged than wills made by heterosexuals.”

For couples like Walter Neagle and Bayard Rustin, adult adoption ended up saving them heartache when Rustin was hospitalized for a perforated appendix and peritonitis. Because Neagle was next of kin, he became the executor of the will and was able to move forward with the legal matters of their shared property seamlessly.

 For many of us in the LGBTQ community, the relationships we have with each other become our only family ties. 

It may be hard to imagine the necessity for these adoptions now that queer people can easily get married in the US and Canada, but that’s not to say same-sex or gay marriage isn’t still being contested. Just this year Iowa legislators proposed a ban on same-sex marriage, and an additional bill that would consider current marriages null and void. With an increase in anti-LGBTQ legislation, much of that specifically targeting trans people, there is always reason to consider what the options for protecting one another in life and death will need to be.

For many of us in the LGBTQ community, the relationships we have with each other become our only family ties. There have been countless examples of trans people being misgendered and detransitioned during their funerals to appease the family members that never accepted them for who they really were, and all of this is rooted in the longstanding homophobia that our queer ancestors have endured. But with the hardships and explicit violence, we are still experiencing the rise of acceptance across cultures. The death industry itself has been scrutinized for its homophobic traditional values and is on its way to positively changing.