Estate Planning for Non-Married Couples: Attorney Services in New York
“The number of unmarried couples who live together reached 18 million in 2016, a 29% jump from 14 million in 2007. Among adults age 50 and older, the increase was 75%: About four million were cohabiting in 2016, up from 2.3 million in 2007.”
For some couples, getting married just doesn’t feel necessary. However, they don’t enjoy the automatic legal rights and protections that legally wed spouses do, especially when it comes to death. There are many spousal rights that come with a marriage certificate, reports CNBC in the article “Here’s what happens to your partner if you’re not married and you die“. Without the benefit of marriage, extra planning is necessary to protect each other.
Taxes are a non-starter. There’s no federal or state income tax form that will permit a non-married couple to file jointly. If one of the couple’s employers is the source of health insurance for both, the amount that the company contributes is taxable to the employee. A spouse doesn’t have to pay taxes on health insurance.
More important, however, is what happens when one of the partners dies or becomes incapacitated. A number of documents need to be created, so should one become incapacitated, the other is able to act on their behalf. Preparations also need to be made so the surviving partner is protected and can manage the deceased partner’s estate.
In order to be prepared, an estate plan is necessary. Creating a plan for what happens to you and your estate is critical for unmarried couples who want their commitment to each other to be protected at death. Unmarried couples must diligently address estate planning to secure legal protections and inheritance rights. The general default for a married couple is that everything goes to the surviving spouse. However, for unmarried couples, the default may be a sibling, children, parents or other relatives, not the unmarried partner.
This is especially true if a person dies with no will. The courts in the state of residence will decide who gets what, depending upon the law of that state. If there are multiple heirs who have conflicting interests, it could become nasty—and expensive.
However, a will isn’t all that is needed.
Most tax-advantaged accounts—Roth IRAs, traditional IRAs, 401(k) plans, etc.—have beneficiaries named. That person receives the assets upon death of the owner. The same is true for investment accounts, annuities, life insurance and any financial product that has a beneficiary named. The beneficiary receives the asset, regardless of what is in the will. Therefore, careful designation of beneficiaries needs to be part of the estate plan. Properly naming beneficiaries ensures that assets are transferred directly to the designated individuals, bypassing the probate process.
Checking, savings and investment accounts that are in both partner’s names will become the property of the surviving person, but accounts with only one person’s name on them will not. A Transfer on Death (TOD) or Payable on Death (POD) designation should be added to any single-name accounts.
Unmarried couples who own a home together need to check how the deed is titled, regardless of who is on the mortgage. The legal owner is the person whose name is on the deed. If the house is only in one person’s name, it will become part of the estate of that person upon his/her death. Change the deed so both names are on the deed with rights of survivorship and therefore, both partners are entitled to assume full ownership upon the death of the other.
To prepare for incapacity, an estate planning attorney can help create a health care proxy so partners will be able to make medical decisions on each other’s behalf. In some states, a living will can also be created for by each partner setting forth end of life decisions. For financial matters, a durable power of attorney will allow each partner to have control over the other’s financial affairs.
It takes a little extra planning for unmarried couples, but the peace of mind that comes from knowing that you have prepared to care for each other until death do you part, is priceless.
Reference: CNBC (Dec. 16, 2019) “Here’s what happens to your partner if you’re not married and you die”
