Estate Planning for Unmarried Couples Can Be More Complex

September 1, 2005

The American legal system makes assumptions about married couples. For example, default provisions give a husband or wife the power to make at least some medical decisions for a spouse who is no longer competent to direct his or her own treatment. The surviving spouse usually has first priority to administer a deceased spouse’s estate, and will usually inherit most of the estate if the deceased spouse did not sign a will.
None of those automatic protections apply to unmarried couples, regardlesss of the strength or duration of their commitment. Many heterosexual couples chose not to marry for one reason or another, and thereby forgo the protections and benefits of marriage laws. Gay and lesbian couples, of course, are not provided an opportunity to duplicate the marriage relationship except in narrow circumstances.
That makes estate planning much more important for couples who are committed to one another but unmarried – for whatever reason. A sampling of the issues faced by such couples:
Powers of Attorney. Neither partner will have any automatic right to make decisions for the other in the event of a medical catastrophe. In fact, neither partner will have any right to visit the other in the hospital setting, to talk to doctors or even to get status reports.
Living Wills. Without clear instructions (and a health care proxy), each partner runs the risk of leaving family members in charge of their medical decisions. That may be fine for some, but terrifying for others.
Wills and Trusts. Assuming that each paratner wants to share a part of his or her estate with the survivor, it is essential that those provisions be reduced to writing. Relying on the goodwill of family members, or spoken (even clearly spoken) instructions, is simply begging for legal trouble, expense and personal devastation for the survivor.
Partnership agreements. If partners have any desire to protect one another (and, not incidentally, to minimize legal costs and acrimony) in the event that the relationship should end, then a written agreement is a necessity. Simply placing assets in joint names may not be sufficient, and may even be dangerous in ways not experienced by married couples. The partnership agreement may resemble a prenuptial agreement often signed by married couples.
Joint parenting agreement. Family realtionships are much more complicated today than the legal system is prepared to address. Unmarried couples, even same-sex couples, may have adopted one another’s children, or jointly adolpted a child not biologically related to either of them. If one partner dies or the couple splits up, parenting and even visitation rights may be difficult to address. A written agreement may help ease the transition.

Source: Elder Law Issues, Volume 12, Issue 51.