There are many reasons why couples choose not to marry. While it is a couples’ choice whether to marry are not, there are laws that favor a couple that is married, particularly when dealing with death. There are default laws that protect a surviving spouse in the event of death. But a life partner would not be included without some kind of estate plan. If someone dies without a will or trust, they are said to have died intestate. Each state has different laws regarding division of the deceased person’s property under the laws of intestacy. The laws are just default laws and can be circumvented by having a will, trust, or some other form for transferring of assets.
These default laws assume that people want to benefit their surviving spouse and children. Therefore even without any will or trust in place, if a married person dies intestate, their assets will naturally go to their surviving spouse. If they are not married, and have no will or trust, the assets are distributed by the laws of intestacy, which would mean their biological and/or adopted children, and if none, parents of the deceased, etc. The unmarried partner would have no right to collect because there is nothing under the law that dictates that deceased had a reason to want their assets to go to that person over the deceased’s family.
How does this affect an unmarried couple? What can they do to make sure to take care of their loved one without having to get married? Courts have found that when there are agreements in place between a couple to pool their resources and share in the property accumulated during the relationship, that there are some property rights of the partner. These agreements can be express, written or oral, or implied, interpreted through the couple’s actions. An implied agreement is not as strong as something in writing. These agreements have limited results that will most likely require a lawyer to help the surviving partner to collect upon the death of the other partner, if there is no will or trust.
“Unmarried cohabiting couples who seek greater certainty should define their own property rights with respect to each other in a more formal, written, cohabitation agreement. This type of agreement defines property rights between the cohabitants, any potential support rights, and any inheritance rights.”i If your intention is to stay unmarried, for whatever reason, a cohabitation agreement would be a good plan. Depending upon the complication of your family situation, i.e., blended family, seeking a lawyer’s help with drafting this agreement could help to protect what you as a couple would like to happen.
An estate plan (will/trust, power of attorney, advanced health care directive), will also help when you are an unmarried couple. These documents are your way of letting the world know what you would like in the event you are either unable to make decisions due to incapacity, or death. Again, if you have a blended family, or other difficult family dynamics, seeking an attorney’s assistance with the preparation of these documents can be extremely beneficial. It is very difficult for a surviving partner to be grieving and have a family member of the deceased trying to kick them out of the house that was shared with the deceased for decades.
iNicole M. Pearl, Esq., Avoiding the Knot: Estate Planning for Unmarried Couples, California Trust and Estate Quarterly, Vol. 23, Issue 1, p. 21.
