Unmarried couples need to plan their estate because they do not enjoy the automatic legal rights of marriage. Estate planning addresses two issues: first, what to do about a person’s property and, second, who gets to make decisions about that person (i.e., medical decisions). Unmarried cohabitation is a rising trend, especially among adults younger than 35. According to the Census Bureau, unmarried cohabitating relationships have increased 29% since 2007. Therefore, unmarried estate planning has never been more important for young couples.
Not Planning an Estate Results in Serious Problems
If an unmarried couple and couples who aren’t in a civil union or domestic partnership don’t plan their estate, state law determines who inherits their property. If they don’t have children, it is likely their property passes to their parents. Similarly, unmarried couples are not entitled to homestead rights or Social Security and other like benefits. In most states, if a person doesn’t assign the right to make medical decisions to his or her partner, his or her parents will get to make these decisions. Further, unmarried partners without legal rights are even barred from obtaining information about their partner’s health due to HIPAA.
Estate Planning: Generally
Estate planning addresses two issues: (1) what happens to assets and (2) what happens to the person. There are a variety of different estate planning tools, including but not limited to:
- Wills: identify and dispose of the property.
- Living Trusts: can own/possess, manage, and dispose of the property.
- Durable Power of Attorney: assigns legal authority to another person.
- Medical Directives: instructs an individual what medical decisions should or should not be made.
- Letters of Instruction: advises the person managing the estate of everything they need to know.
Property can be disposed of in wills, trusts, and in joint tenancy. In a will, the testator identifies his or her property and who he or she would like it to go to. The executor (i.e., the person who executes the instructions in the will) follows the instructions and closes the estate.
Trusts are separate legal entities that can own and sell property. Trusts can receive property from both unmarried partners. The trust instrument includes instructions on how the property should be managed and who is empowered as the Trustee.
Finally, joint tenancy occurs when two or more individuals jointly own property. When an owner dies, his or her interest is automatically transferred to the surviving owners.
A durable power of attorney authorizes an individual to make decisions on another person’s behalf, such as medical and financial decisions. Medical directives instruct the representative as to how the person would like to be treated.
Retirement plans, bank accounts, and insurance policies allow owners to designate one or more individuals to pay these benefits if the owner dies. These “pay-on-death” instructions usually take precedence over a will or trust and should be considered part of any estate plan.
Technology companies usually do not allow partners to access their deceased partner’s digital assets, such as email, social media accounts, and websites, without authorization from the user. Accordingly, instructions to deal with digital assets should be part of any estate plan.