About 7% of Americans are living in unmarried relationships. If you are an unmarried person but you are in a long-term, committed relationship with no plans of getting married, you should still consider getting an estate plan. In fact, it may be more important for you because the default laws might not be favorable for you, as they do not protect unmarried couples. Let’s discuss what the default law says, what estate plans you can get as an unmarried couple and more.
The default state laws on property distribution
If you are hoping that all of your assets pass to your life-long partner automatically when you die… well, sadly, that’s not how the law works. The default law (intestacy laws) on asset distribution favors surviving spouses and children. Each state is different; most states say that when someone dies without a will or trust in place, their stuff will pass on to their spouse and/or children. It says nothing about a lifelong partner. Let’s use an example to demonstrate.
John and Lisa are lifelong partners. They never got married because they don’t believe in marriage but have been together for over 30 years. They don’t have any children together, but they do have siblings. John isn’t in contact with one of his siblings, though. When John eventually passes without an estate plan, default law will automatically pass his stuff to his parents and/or siblings. Since his parents are no longer alive, it will all go to his siblings, yes, even the one who he doesn’t talk to anymore. As you can see, being an unmarried person without an estate plan can create issues.
The default laws on medical decisions for an incapacitated person
Now, let’s talk about what happens when a person becomes incapacitated from an illness or disability and is unable to express their wishes for their own healthcare. Typically, each state has its own default law on who should become a person’s medical proxy. Unmarried lifelong partners are not at the top of the list. Typically, the first few people that are “in line” to make medical decisions for someone are a spouse, adult children, parents, and siblings. Then, “close friends” may be the next option, but it depends on your state’s law.
Okay, so what does this mean for an unmarried couple? If you’re in a committed relationship but not married, and something happens where you can’t make your own healthcare decisions, the law prioritizes your family–not your lifelong partner. That means your spouse, children, parents, or siblings would be the ones making those choices for you.
Now, if you don’t have any of those family members, some states allow a “close friend” to step in, and that could be your partner. But here’s the catch: the laws vary from state to state, so your partner might not automatically have that right. It’s definitely something to be aware of and maybe even look into the specific laws in your state.
The default laws on power of attorney
Power of attorney is a fancy legal way of saying another person can act as your agent for financial and legal affairs. This can be for someone who is alive and well or for someone who is incapacitated and unable to make their own decisions. Without a formal power of attorney agreement, depending on your state law, your loved ones will generally have to petition a court to gain a conservatorship over your financial and legal affairs.
The default laws on guardianship of minor children
Let’s imagine a scenario where you are in a long-term committed relationship with someone, but you have minor children from a previous relationship. Your partner has not adopted your kids (yet). However, you want to ensure that your partner takes guardianship of your minor children should anything ever happen to you. Without something in place regarding guardianship in a will, a court will appoint guardianship of the children based on the children’s best interests.
What type of estate plan should you set up as an unmarried couple?
As you can see, the default law is not in your favor as an unmarried couple, so what type of estate plan should you get? Here are some of your options:
Will
A will is a basic estate planning document that can designate beneficiaries to take ownership of your assets. It can also outline guardianship of minor children, ownership of pets, and final arrangements wishes.
Trust
A trust is a bet more in-depth and designate beneficiaries for your stuff under certain conditions and you can appoint a trustee who ensures your wishes are followed through. For example, “John creates a trust that distributes assets to his unmarried partner, Lisa. Once Lisa passes away or remarries, the assets will then be distributed to John’s nephew, Tony.”
Medical Proxy
This one is also important for unmarried couples as it can allow you to appoint your unmarried partner as the person who will make all of your medical decisions for you instead of relying on default law which typically requires family to make these decisions for you.
Living Will
Despite its name, it’s not a will in the traditional sense. It’s a way for people to list out their healthcare wishes in the event that they are unable to do so. Things like whether or not you are okay with life support, certain medications, certain spiritual practices, etc.
Power of attorney
A power of attorney appoints a person to be the person who handles your finances and legal matters as your “agent” if you are unable to do so yourself. Without a formal power of attorney in place, a court will appoint one for you, and it may not be one that you are okay with.
Guardianship for minor children
If you have minor children from a previous relationship (and are not adopted or the biological children of your unmarried partner), yet you want your partner to be the guardian, you need to designate this in a guardianship appointment. You can do this in a will. Without this, a court will appoint a guardian for your children.
“Guardianship” for your pets
While it’s not really the same as guardianship for children, providing continuity of care for your pets is important! Pets are treated like property in most states, so they will be distributed according to the default intestacy laws of your state. Creating a will that devises your pet to your unmarried partner can ensure your partner gets your pet and not another family member.
The bottom line
If you are an unmarried couple, you should definitely consider setting up an estate plan. Whether you want to protect your stuff after you die, your healthcare if you become incapacitated, your minor children, pets, or your power of attorney, there’s an estate plan for everyone! And it’s especially important for unmarried couples because the default law does not favor people who are not married.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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