Estate Planning for Unmarried Couples - Part 1

Updated: Nov 13

What happens when you die if you have a partner but are not legally married? If you become incapacitated or pass away, the laws of intestacy will take effect. That means that the state in which you live will determine who gets your assets, usually starting with your children.

For example, in New York, if you do not have children, your assets will go to your parents. If your parents are no longer living, they will go to your siblings, and so on. The bottom line is if you pass away and you are in an unmarried partnership and you do not have a will or estate plan, your family will automatically receive your inheritance according to the laws of intestacy, not your partner.

There are some things you can do without an estate plan, such as making your partner the beneficiary of a life insurance policy and/or a retirement account. But that’s limited to your passing. In other words, if you were to become incapacitated, your partner would not be able to access your assets, even if it were being used for your care. Same with a will. A will is only enforceable once you pass away, so it will not give your partner any authority if you are incapacitated. In addition, a will requires probate, which is a drawn-out, legal process. Similar to litigation, your partner might have to hire an attorney, which can get expensive (and remember they might not have access to your money while the litigation is pending)! Plus, it can take months, sometimes longer, before your assets are distributed according to your wishes.

The most ideal situation in an unmarried partnership is to create a revocable living trust that names your partner as a beneficiary. A trust can be used in the event of your passing and incapacity, giving your partner access to your assets while you are still alive.

Check out Part two of this blog for powers of attorney, and how powers of attorney can benefit you if you are in an unmarried partnership.