Common law spouses.
There’s a lot of ways to describe a committed relationship where the people involved are not legally married. Today, we are just going to refer to them as “unmarried couples,” and the number of them have been rocketing up since the 1960s – to the tune of a 1,500% increase from 1960 to 2001. As of 2017, there are over 18 million adults who are part of an unmarried couple. And it is not just young people – cohabiting is growing most quickly with adults 50 and over.
We unmarried couples operate at a distinct disadvantage from married couples when it comes to planning for incapacity or death.
As always, the law trails significantly behind changes in
modern society. Divorce is up, marriage is down, and cohabiting is in – but many of the laws of probate still haven’t changed since the pilgrims sailed over. This means that married couples are treated more favorably than unmarried ones when it comes to estate planning. The default laws consider unmarried couples to be on par with complete strangers towards each other.
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 doctor or hospital if that would provide you with better care. Your significant other might not be able to view and pay your
medical bills, if you have combined finances. In the worst case scenario, you might even be barred from seeing your significant other at all while they are incapacitated.
A health care power of attorney and HIPAA waiver are necessary to put you in the same position as if you were married. These documents tell health care professionals that you should be informed of your significant other’s condition and make decisions on his or her behalf when incapacitated.
If your partner becomes incapacitated, you are no more able to make decisions for him or her than a stranger. You cannot handle your partner’s financial matters unless the account is held by you jointly. So, if your partner had a bank account, retirement account, or bills in his or her name alone, you cannot touch these assets to use them for your partner, yourself, or your family. This is the same for personal matters. You cannot open your partner’s mail, put him or her in a care facility, make insurance claims on their behalf if the policy was in only your partner’s name, etc.
Instead, you will have to petition the court to become a guardian and conservator for your partner. The process of becoming a guardian and conservator is very long and very expensive, particularly in St. Louis county. It involves paying for a lawyer for both you and your partner, paying to have your partner’s family served with notice of the court process, doctor’s visits and a hearing. Your partner’s family may file a competing petition, making things ten times worse.
To avoid these complications, you can get a durable powers of attorney set up so that you can take care of your partner, and they you in case of incapacity.
Things get real sticky with property ownership. If your partner owns your residence alone (“sole owner”) and has no estate plan, when your partner passes the house will go to your partner’s heirs – parents, children, siblings – but not to you. This puts everyone in an awkward position. Do they sell or gift the house to you – but if they do, there are tax consequences. Do they allow you to live rent-free on the property? Do they kick you out?
Alternatively, if both of your names are on the deed to the house as tenants in common (the default way of holding property as a couple), you are still left with quite a mess. This means that your partner’s heirs now own half of the property. While hopefully your family will work things out with your partner, they could petition the court for any number of possible solutions – partition the property, force your partner to sell, force your partner to pay rent, or coerce your partner to buy out their share.
The third and less common alternative is for both of you to own the property as joint tenants with right of survivorship. This means that if your partner passes, you will inherit the property. Sounds great, right? Unfortunately, not only is this type of deed extremely uncommon, it still doesn’t put you in as good of a position as if you were married. Your partner can sell his or her half-interest in the property to someone else without your permission, unlike if you were married. If you decide to put your partner’s name on your deed as a joint tenant, this is considered a gift and will trigger gift tax consequences with the IRS if the property is valued at over $30,000 or so.
A better alternative may be to put the house into a joint trust, or use a beneficiary deed to convey the property to you after the owner’s death.
Money and Other Assets
After your partner’s passing, your partner’s family will have legal ownership of all of your partner’s personal property that did not have a deed indicating co-ownership or transfer on death (TOD) designation. So, your partner’s furniture, clothes, television, pictures, etc will go to your partner’s family. If your partner owned a car in his or her name alone without a TOD naming you, that car will go also go to your partner’s family. If you relied upon that car to get to work or drive around your children, too bad.
The same goes with any bank accounts, financial accounts, retirement accounts, and pension. Unless there is a transfer on death designation naming you, or you co-owned the accounts, that money and property goes to your partner’s family, as well. This can significantly affect your standard of living and ability to provide for yourself and family after your partner’s passing.
The best way to avoid these problems are to have a trust or will set up to convey your assets to each other. A trust is usually the best option because it avoids the cost and delay of probate (typically the cost of a car in fees).
Get A Plan in Place
As you can see, there can be real problems for unmarried couples if there is a death or incapacity in the relationship. Unlike married couples, unmarried couples cannot rely upon the default laws to give them some protection in these circumstances. It is essential to consult with an estate planning attorney to get the appropriate documents in place that will put you and your partner in the same or even better position than a married spouse would be in.