Whether they are trying to preserve their own personal wealth, do not want to change their tax or benefit status, or otherwise do not want to legally form a marriage, many couples are choosing not to get married.
While unmarried cohabitation is becoming increasingly common, the law has not exactly kept pace with this new normal. Not planning can cause disastrous and unanticipated effects, but, fortunately, there are ways to protect your unmarried partner.
What Happens Without an Estate Plan?
If you do not have an estate plan in place, default state laws will apply. For example, your property will be distributed according to your state’s laws of intestacy, which usually go to your surviving spouse first, then to your children, then to your other family members, starting with immediate family and then going to more extended family members. So, if you have an unmarried partner and no children, you may well see your property going to your parents, a brother with whom you are estranged, or a long-lost cousin Jeff. Your partner may be forced out of a shared residence because he or she may not have homestead rights that are provided only to married surviving spouses.
If that’s not bad enough, more havoc can arise while you are alive. The romantic partner with whom you have spent the last 10 years of your life may not be allowed to visit you in a hospital room if your family wants to force the issue. Caregivers may not be able to give you any information about your loved one if he or she did not give you power of attorney or sign a HIPAA waiver. If your loved one is in no physical or mental condition to care for himself or herself, you may have no right to petition the court to make you a guardian or conservator, and you may be cut out of their life.
Ways to Protect Your Partner
Here are some ways that you can protect your romantic partner and your wishes:
1. Avoid the Probate Process
Probate is often a time-consuming and expensive legal process that your family may undertake after you pass away. However, it generally does not afford any rights to your unmarried partner. You may be able to avoid probate entirely so that the court system does not get involved with the distribution of your property, such as transferring property to a living trust.
2. Own Property as Joint Tenants with the Right of Survivorship
You can own real property, financial accounts, and other assets as joint tenants with the right of survivorship. With this form of ownership, the co-tenant becomes the sole owner after the other owner passes away. This helps transfer property out of probate regardless of what your will or intestate law says.
3. Name Your Partner as Your Beneficiary
You may have various assets or financial accounts. You can name your partner or other person of your choice as the beneficiary to assets such as:
- Retirement accounts
- Checking accounts
- Stocks and bonds
- Life insurance proceeds
4. Name Your Partner as Your Power of Attorney
If you want your partner to have the power to make medical and financial decisions on your behalf, you can name him or her as your general durable power of attorney and power of attorney for healthcare.
5. Get Help
Estate planning laws may be complex, so talk to a knowledgeable estate planning lawyer for more ways to protect your loved one.