November 15

3 Estate Planning Issues For Unmarried Couples

Estate planning is about much more than planning for death. It's about planning for life. It's the way to ensure your beloved will be protected and provided for in the event of your death or incapacity. So, it’s critical for unmarried couples to understand that if you and your partner are unmarried, your partner would have no rights or protections should you become incapacitated or die without any planning in place, which leaves your partner vulnerable to several potentially dire risks.

Given these issues, if you are in a committed partnership, you should be aware of several unique considerations regarding your estate plan. While you should meet with an experienced and well qualified attorney to address your specific circumstances, here are three of the most pressing concerns to keep in mind.

1. A Will Alone Might Not Be Enough

Suppose you're unmarried and die without any estate plan. In that case, your property will be shared with your surviving family members according to your state's laws through intestate succession. The state's laws would not protect your unmarried partner, so if you want your partner to receive any of your assets upon your death, you need to—at the very least—create a will.

However, having an estate plan that consists solely of a will often doesn’t provide sufficient protection for your partner, and we often recommend having both a will and a trust. Although a will is a foundational part of nearly every estate plan, for a variety of reasons, having just a will could leave your partner at risk.

Most importantly, a will does not work in the event of your incapacity, which could happen at any time before your death. Should you become incapacitated with only a will in place, your partner may not have access to needed funds to pay bills, or they might even be kicked out of your home by a family member appointed as your guardian during your incapacity.

Furthermore, upon your death, a will is required to go through the sometimes long, costly, and potentially conflict-ridden court process known as probate. In contrast, assets that are properly titled in the name of your trust would pass directly to your partner upon your death, without the need for probate or any court intervention.

If your relationship is not supported by one or both families, avoiding probate is especially important. If a family member doesn’t support your relationship, they are more likely to contest your will during probate.

If your will is successfully contested, this could prevent your surviving partner from receiving assets you left in your will. The process of contesting is extremely time-consuming, costly, and emotionally draining for your surviving partner.

Further, a typical will is not set up to protect your assets, after they are passed to your partner, from creditors or lawsuits. However, leaving your assets in a trust that your partner can control helps ensure the assets are protected from creditors, future relationships, and/or unexpected lawsuits.

2. Incapacity Planning is Especially Vital

As we touched on earlier, estate planning is not just about planning for your eventual death; it’s also about planning for your potential incapacity due to injury or illness. Proactive estate planning allows you to name the person (or persons) you would want to make your healthcare, legal, and financial decisions for you if you are incapacitated and unable to make such decisions yourself through a durable and/or medical power of attorney.

In addition to creating a will, possibly a trust, and powers of attorney, be sure to also create a living will, so that your partner will know exactly how you want your medical care managed in the event of your incapacity, particularly at the end of life. Finally, don’t forget to provide your partner with a HIPAA authorization, so they will have access to your medical records to make educated decisions about your care.

We can support you in putting in place a robust estate plan that will ensure that your partner has the maximum rights possible if you are ever struck by a debilitating accident or illness.

This article is a service of Davidek Law Firm, PLLC. We don’t just draft documents; we ensure that families and business owners make informed and empowered decisions about life and death, for themselves and the people they love.

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