Estate Planning for Unmarried Couples And Common Law Spouses

By: Attorney Colby M. Lessmann | June 2020

Imagine the love of your life passed away before you were able to get married. Unfortunately, the two of you never got around to drafting a Will or Powers of Attorney. Now, his family is pushing you out of the funeral/burial plans, is taking over all of his assets, and is not allowing you to retrieve your personal belongings out of the home. You would be surprised how often this does happen. Estate planning is not just for married couples.

Estate planning involves a person making decisions during their life about who shall receive their assets upon their death. Estate planning is especially important for unmarried couples so as to protect their life partner after their death. If a person dies without a Will, state law addresses the beneficiaries of the decedent’s estate. For unmarried couples, the unmarried partner would have no legal inheritance rights and this could result in the surviving partner being shut out of receiving any assets from their partner’s estate. The following are some tips and important factors in considering your estate plan.

What is your relationship status?

Were you and your partner legally married, or are you and your partner basically in a boyfriend/girlfriend type of cohabitation arrangement? In some states, if partners have resided together long enough and have held themselves out in the community as married, the surviving partner may be able to argue “common law marriage.” “Common Law Marriage” is established under state law and, in those states which recognize it as a form of marriage, the burden of proof may be too strict for the surviving partner. A cohabitating, unmarried couple cannot rely solely on the possibility of proving a “common law marriage,” but should instead consult an Attorney to establish an estate plan to protect each other upon death.

Unmarried gay couple holding hands

What estate planning documents are available for unmarried couples?

1) Last Will & Testament: A Last Will & Testament would allow you to specifically identify who you want to handle your affairs upon death and to whom you want to receive your assets upon your death. If a person dies without a Will, state law applies and identifies the beneficiaries of the decedent’s estate. An unmarried life partner has no inheritance rights under state law, as they are not a legal surviving spouse. Without a Will, it is likely that nothing would pass to the cohabitating partner, and everything would likely go to the other heirs of the deceased partner (such as parents, children, siblings, etc.).

2) Living Trust: Living Trust would allow you to change title to your property now by transferring title of the property to your Trust. For example, you can transfer your real estate to the Trust and upon your death, the Trustee of the Trust would handle the sale and distribution of the assets to your intended beneficiaries. The Trust acts much the same as the Last Will & Testament in protecting your cohabitating life partner. However, with a Trust, you are transferring title to the real estate now rather than with a Will, which transfers the real estate upon death.

3) Medical Power of Attorney: If a couple is married, there are some inherent rights to the spouse for making medical decisions should their spouse not be able to make medical decisions. In most states, state law also provides a priority list of who can make decisions should they need to obtain court intervention. For unmarried parties, however, a cohabitating partner may have no legal rights to make medical decisions for their partner regardless of how long their relationship has lasted. Many persons may find themselves squeezed out of the decision-making process by their partner’s family. Without a Power of Attorney for Medical Decisions, the surviving partner may be at the mercy of their partner’s family for making critical health care decisions.

4) General Power of Attorney (Financial Decisions): This topic depends upon how the assets are titled. If a person has a joint bank account with sibling or parent, for example, your life partner may have no control over that account. A partner may have no control over the partner’s individual assets in case of emergencies due to the fact the asset is in the sole name of the partner. A Durable Power of Attorney for Financial Decisions to your partner becomes critical to allow them access to your financial resources and assets in the event you are disabled and unable to access your assets. Like the Medical Power of Attorney, without a General Power of Attorney, the life partner may find themselves financially squeezed out by the deceased partner’s surviving family.

5) Power of Attorney for the Disposition of your Final Remains: In some states (like Iowa), a person can execute a Power of Attorney for making funeral decisions and determinations as to the disposal of their final remains. As with the other Power of Attorney decisions, an unmarried party may have no legal right to make funeral decisions and could be squeezed out of the process (and maybe even the funeral itself) by the deceased partner’s family. This Power of Attorney would provide the life partner the authority to make funeral decisions/arrangements, as well as determine the ultimate disposition of their partner’s remains (such as cremation, burial, etc.).

Your answers to the above-questions play a pivotal role in your estate plan. The last thing you desire is to have your surviving life partner shut out from your assets, kicked out of their home, and unable to survive after your death.

If you have questions about your estate plan or your legal rights after the death of your life partner, you should consult a lawyer. An estate planning attorney can assist you in assessing the best estate planning tool for your needs.

Unmarried lesbian couple

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