Estate Planning for Unmarried Couples

According to Pew Research Center, there are currently about 9 million unmarried couples living together in the United States. That number more than doubled between 1990 and 2010, and continues to grow. About half of those living with an unmarried partner are under the age of 35. However, the number of couples aged 50 and older who are living together without marrying has increased by 75% in the past decade.

Posted on November 15, 2017

Given this rapid growth, estate planning for unmarried couples has become increasingly important. While this type of advance planning is important for all adults, it may be all the more critical for unmarried couples. And, unmarried couples face issues that married couples do not.

The most important issues will vary from couple to couple, depending on issues such as:

• Age and general health
• Assets and liabilities
• Jointly-held property
• Whether or not the couple has minor children

Goals and priorities will differ, as well. For example, one older couple with adult children from past marriages may want to prioritize ensuring that the surviving partner is provided for when one passes away. An otherwise-similar couple may agree that they each want the bulk of their estates to pass to their adult children and grandchildren.

Despite their differing aims, these two couples have one very important thing in common: the need to make informed provisions for the future.

The Importance of Estate Planning for Unmarried Couples

When a married person passes away without a will or other plan for distribution of his assets, the results may not be what he would have intended. However, intestate succession provides a degree of protection for his spouse and minor children. Unmarried partners do not enjoy that same protection. When one partner passes away, the other will receive nothing—unless the deceased partner took steps to make that happen.

Even minor children may be unprotected, or face a complicated legal process to secure their rights, if paternity has not been legally established.

Key Issues in Estate Planning for Unmarried Couples

Creating a Will or Living Trust: If one partner wishes to provide for the other after he or she passes away, affirmative steps are required. Wills and living trusts are the two most common means of passing most property to loved ones upon death.

Legally Establishing Paternity: If an unmarried couple has a child together, ensure that paternity is established as soon as possible. If the child’s mother passes away without paternity being established, it may be difficult for the father to secure custody of the child. If the father dies without establishing paternity, it may create obstacles to inheritance, social security benefits, and other sources of support.

Creating Healthcare Proxies: While it’s a good idea for everyone to consider who they want making decisions for them in the event of a medical emergency or incapacity, a single person in a long-term relationship who wants his or her partner to make those decisions must take legal steps not required for a married person, such as creating a healthcare power of attorney (POA).

Titling Property Strategically: In the absence of a will or beneficiary designation, property titled to one partner won’t pass to the other. Even jointly-held property may create unanticipated complications, as the deceased’s half-interest may pass to relatives, forcing the surviving partner to sell the property or buy out the heir’s interest. Understanding and making the most of rights of survivorship is even more important for unmarried couples.

Considering Tax Ramifications: Both state and federal law offer some protections to spouses who take ownership of property when a husband or wife passes away. However, an unmarried partner doesn’t enjoy the same protections, meaning that transfers on death may come with an unanticipated price tag.

Protecting Yourself and Your Partner

When you’re unmarried but in a committed, long-term relationship, protecting yourself and your partner requires conscious decision-making and action. The first step toward ensuring that your wishes are carried out after death, or that you are secure if your partner should pass away unexpectedly, is to educate yourself. A conversation with an experienced estate planning attorney can be your best source of information about the issues you need to consider and the options available to you and your partner.