Why is estate planning for unmarried couples critical?
The goals married couples have for estate planning can often be achieved with the statutory defaults. While additional preparations are still necessary to ensure their wishes are carried out, the basics would still be covered if they fail to plan. For example, when a married person passes away without a valid will or other estate plan in place, the laws governing their estate distribution will most likely name their spouse as their first heir. In the majority of cases, this would be a married person's preference regardless of whether they plan ahead or not.
Unmarried partners, however, are not legal heirs of each other. For inheritance purposes, the law treats them as complete strangers. When one partner dies without conducting any estate planning, their blood relatives – not their partner – will inherit their property.
For example, under the statutory defaults, if you own the house that you and your partner share, they will not be legally permitted to continue living in your shared home after your death. If he or she were your spouse, this would not be the case. And because your partner is not your legal heir, your house will be transferred to your adult children, parents or siblings. The unmarried partner is often left out in the cold by their loved one's family, as the family members may not be close with them, or they might be more interested in using or selling the property for their own benefit. Your family members could take action to evict your partner from the home you shared so it can be sold.
What about financial decisions if an unmarried partner is incapacitated?
Financial issues are also problematic if you or your partner become incapacitated. Things are often simpler for married couples, as they often use joint accounts. As a joint owner on their accounts, the other spouse will be able to continue to make ongoing financial decisions and pay bills without the need for documents or courts.
Unmarried couples, however, generally have separate accounts. This means that when one person is incapacitated, their partner will not have automatic access to their loved one's assets to help pay for things like medical bills and mortgage payments.
This issue can be especially problematic when the partner who financially supports the couple's lifestyle is the one who is incapacitated. The partner with capacity may not have access to the funds needed to pay the bills without proper estate planning.
Can my partner make health care decisions for me?
No, unlike spouses unmarried partners cannot make medical decisions for each other without written authorization.
When a married person is incapacitated, there are virtually no legal hoops to jump through in order to make health care decisions for their loved one. In many circumstances, spouses are able to arrange or approve of medical treatment for each other without needing to do anything at all, even without a power of attorney.
An unmarried partner does not have that ability. The medical provider will almost certainly look to a blood relative to make those decisions, since they are most likely to be appointed guardian. The medical facility may also be unwilling to provide the unmarried partner with any medical information without additional planning and the right documents in place.