Estate Planning for Unmarried Couples - Living Will (Part 4)
Updated: Jul 19, 2023
Hi, my name is Leslie Sultan. I'm an estate planning attorney in New York. This is part four of our four-part series on how to protect your assets and your partner in the event of your death or incapacity when you are in an unmarried couple relationship.
In part one, we discussed that in the event of your death, you can protect your partner and make sure they inherit your assets by creating a will or a trust. In part two, we talked about how to protect your finances in the event of your incapacity by naming your partner, through a power of attorney, as your agent. In part three, we talked about medical powers of attorney and how to name your partner as your agent to make medical decisions and health care decisions in the event of your incapacity.
Today we're going to discuss a living will. Please note! A living will should not be confused with a last will and testament. A last will and testament is an estate planning document that describes how you want your assets to be distributed upon your passing.
On the other hand, a living will states how you want your passing to go. For example: Do you want to be on life support? At what point should life support be discontinued? If you want all medical resources available to you until there's no more, than that would be stated in your living will. If you prefer not to live in a vegetative state, the living will notifies your doctors and your agent exactly what your wishes are.
The Terry Schiavo case that was in the news many years ago illustrates exactly what could
happen to a young couple who do not have a living will in place: Terry Schiavo was a healthy young woman, only twenty-six years old when she suffered from cardiac arrest and ended up in a vegetative state for over 15 years. How her family responded to her wishes for how to handle this situation resulted in a long, drawn out and expensive court battle between her husband and her parents. Because Ms. Schiavo did not create a living will, therefore left no instructions on how she would want her passing to go or who would be in charge of making medical decisions in this situation.
Despite extensive legal attempts by her husband to allow her to die a quicker and natural
death, Ms. Schiavo was kept alive in a vegetative state for 15 years by her parents (for religious reasons) because of all the court delays and disputes. Meanwhile Ms. Schiavo never improved. Because she did not do the proper planning, her actual wishes were never clarified prior to her incapacitation in a Health Care Directive where she could have appointed her husband decision-making power. Without the Living Will, even if she hadn’t appointed an agent, no one could rely on a clear writing of how she would have wanted to pass. Often people think they don’t need estate planning when they are young. The Schiavo case is a powerful lesson on why that’s untrue.
A living will is an integral part of estate planning documents. We prepare it for all of our clients. If you have any questions or maybe a story you'd like to share, let us know. Otherwise, I hope you enjoyed our four-part series, and we look forward to assisting you with your estate planning, especially if you're an unmarried couple.
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About the Author
Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).
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