Today, more and more couples are living together without the bond of marriage – to the tune of a 1,500% increase from 1960 to 2001. These numbers have only continued to rise as the marriage rate falls. Surprisingly, not all of these unmarried couples are young. About half of these unmarried couples are under 35, but the other half is over 35. A quarter are over 50 years of age.
What does this mean in terms of estate planning? A lot of work. As always, the law trails significantly behind changes in modern society. Perpetually stuck in 1950, the law views marriage is a sacred institution and fails to recognize that just as serious of a relationship can exist without the bond of marriage.
Without an estate plan to tell a judge otherwise, the law views your unmarried significant other as no more significant to you than a stranger.
In regards to healthcare, your significant other might not be informed of an accident involving you. They cannot speak with your doctors if you are incapacitated to learn about your condition and prognosis. They cannot accept or reject certain treatments on your behalf, or move you to another health care provider. Your significant other might not even be able to view and pay your medical bills without your consent – which cannot happen if you are incapacitated and in a hospital in the first place.
After your passing, your significant other will not receive any of your personal possessions, have no rights to live in your house even if you have been cohabiting there together, has no rights to your pension, IRA, or life insurance proceeds in order to continue their standard of living unless you specifically named that person, and cannot claim your remains and see to your funeral.
Any property you owned jointly together will not go to your significant other like it would if you were married. This type of special inheritance law for married couples is called “tenancy by the entirety” or “joint tenancy with rights of survivorship.” Without a marriage, there is no right of survivorship. Instead of passing entirely to your significant other, your half will be divided among your heirs, who will have ownership rights to the property – and therefore could divide it or force a sale.
As you can see, these default laws strongly favor married couples and can cause real problems for the increasing number of committed couples cohabiting without marriage. It is extremely important to have an estate plan in place which ensures that your significant other can have access to your health care information, may make health care decisions on your behalf if you are incapacitated, can directly inherit your assets, or alternatively, have access and use of them until their own passing before then going to your descendants. Research data provided by the Pew Research Center, and a New York Times article.
Disclaimer: The choice of an attorney is an important one and should not be based solely on advertisements such as this one. No attorney-client relationship is formed until you have received a signed engagement letter.