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A Guide For Unmarried Couples and Estate Planning

Jan. 7, 2022

Estate plans are necessary for all adults. It is very important to make sure yours is up to date, especially if you and your significant other are not married. There are several different things to be made aware of to ensure that your partner will properly be taken care of according to your desires should you become incapacitated or when you die. Please note that common law marriages are only recognized in a select few states. If you are outside of these states, the law will not recognize your partner as eligible to any of your assets. Here are four parts of an estate plan you must consider if you and your partner are not married and/or do not plan to get married.

Start with Creating a Will and Trust

In the chance that you pass away before creating or updating your plan, your partner will not be protected if you are not married. If you want your partner to receive your assets once you die, the very first thing you need to do is create a will. This will ensure the protection of your partner. A will allows you to name anyone you would like to inherit all or some of your assets. In order to make sure all assets (including life insurance, pensions, and 401(k)s) get correctly distributed, make sure to name your partner as your beneficiary.

However, though a will does offer protection, it also requires probate and does not have the ability to protect you if become incapacitated. Therefore, we suggest additionally creating a living trust. Trusts offer more protection and do not require probate. If you were to place the assets you would like for you partner to inherit in your living trust, they would be protected. We highly suggest creating a trust to ensure protection for you and your partner.

Grant Your Durable Power of Attorney

It is very important to plan for your potential incapacity. Most people tend to solely plan their estates based on their death. If you would like your partner to take care of you and make your financial decisions, should you become incapacitated, you must grant them a durable power of attorney. If you do become incapacitated and did not have a plan for that in your estate plan, the court will appoint someone for you. More than likely the court will not appoint your partner if you are unmarried. If you choose not to have a durable power of attorney, the person the court will appoint to take care of all your financial matters could end up forcing your partner out of your home. Therefore, granting them a durable power of attorney is very important.

Grant Your Medical Power of Attorney

The medical power of attorney is necessary in the same reason the durable power of attorney is, though this is important considering your own health. If you become incapacitated, you would need to grant your partner a medical power of attorney. This way, they could make your medical and health care decisions for you. If you do not include this in your estate plan, the court would have to appoint someone that would most likely not be your partner if you are unmarried. Even if the court chose one of your family members to hold this responsibility, they could potentially leave your partner out of these life changing decisions, or in a very tense situation, they could deny your partner the right to visit you in the hospital.

When granting your partner with a medical power of attorney, do not forget to give your partner access to your HIPAA authorization, this way he or she will be able to access all your medical records in order to make the best decisions about your care and health.

Finalize Your Plan with a Living Will

If you desire for your partner to have control over how you are cared for towards the end of your life, you should name him or her as your agent in a living will. Though a medical power of attorney names who is able to make your medical decisions, a living will explains exactly how this decision should be made. It will explain how you prefer your important medical decisions to be made. Your preferences can range from if and when you want life support to be removed all the way to what type of food you want and who is allowed to visit you. It is important to have a living will as it ensures you will be treated how you desire in the chance you become incapacitated.

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