Estate Planning Tips for Unmarried Couples

Unmarried couples do not receive the same protections from the law as married couples and face a different set of legal challenges, which makes estate planning even more important. An estate plan can provide assurance that your assets are distributed and end-of-life decisions are carried out in accordance with your wishes. In this blog, OC Wills & Trust Attorneys highlights how non-traditional couples can protect each other from the unintended consequences of separation incapacity or death by way of estate planning.

Why is Estate Planning More Relevant for Unmarried Couples?

Not-married-but-living-together couples should consider establishing an estate plan because inheritance laws favor an individual’s family and legal spouse, especially in California, where there is no Common Law Marriage. This simply means the law does not extend tax incentives or spousal rights to couples who are not married, and the only exception is if an unmarried couple has certain legal documents in place.

What Happens If an Unmarried Partner Passes Away Without a Will?

In the absence of a will, the court will pass all assets per the law, which usually means they will go to the closest living family member, not the unmarried partner. Regardless of whether you split mortgage payments or whose name is on the loan, the person named on the deed is deemed the owner and the property won’t automatically get passed to the partner. The homeowner’s beneficiary (closest living family) will gain the legal right to take over the property, evict the partner, sell or use the property as desired. The property becomes part of the probate estate, where the probate court will distribute a deceased individual’s estate assets.
In case of an emergency that requires medical, end-of-life decisions, or if one of the unmarried becomes incapacitated, the other partner does not have the legal authority to make decisions about healthcare or living arrangements. A judge can appoint a guardian to act as a health care agent on your behalf.
Unmarried couples should take the time to review and prepare legal documents with estate planning attorneys to ensure their partner has legal responsibility when it is needed.

Planning for The Future for Unmarried Couples

To protect partners, who otherwise may be disinherited under California laws, unmarried couples should establish a basic estate plan to ensure the relationship is guarded as legal, similar to that of married couples. Estate planning will allow lifetime partners to receive each other’s assets, and legal documents will enable you to pass your assets to your partner.

  • Wills & Revocable Trust
  • Advanced Health Care Directives
  • Power of Attorney

Wills & Revocable Trust

Non-traditional couples may establish trusts and wills to designate the other partner as the beneficiary of their assets, the trustee of the trust, and the executor of the will. Therefore, the partner may manage the assets if their partner is incapacitated. It will also allow the partner to be prioritized for appointment in court over a deceased partner’s minor child or their parents.
Those wishing to pass on property and assets to a partner they are not married to may consider creating a will. This legal document will distribute your assets and property to your loved ones and partner based on your wishes. Like a will, a revocable living trust allows unmarried couples to pass on their inheritance to one another. The benefit of a trust is that your property and assets will be transferred to the beneficiary without probate. The grantor may amend a revocable living trust as their life circumstances change.

Advanced Health Care Directives

Health care directives grant partners responsible for one another’s medical and end-of-life decisions in the case of an emergency. It is even more critical for unmarried couples to consider end-of-life care because the partner’s family members will be granted the power to make legal medical decisions. The incapacitated partner’s family may stop the non-incapacitated partner from making legal medical decisions. With a durable power of attorney in place, the appointed partner can legally make decisions on behalf of their loved one. Additionally, an Advance Health Care Directive will ensure lifetime partners cannot be prohibited from visiting their partner in the hospital.

Power of Attorney

If you are incapacitated, power of attorney documents appoints an individual to make decisions on your behalf. Unmarried couples may appoint each other to make financial, personal, and medical decisions. A durable power of attorney is even more critical to ensure your partner has the power when it matters most.
There are numerous things to consider when establishing an estate plan as an unmarried couple. Our team of estate planning attorneys can help create a customized estate plan based on our needs. Contact Us today to schedule a complimentary consultation at OC Wills & Trust Attorneys.