4 minute read

Estate Planning for Domestic Partners and Unmarried Couples

Estate planning rules and processes for unmarried or domestic partnership couples can vary from state to state. We've got the guidelines covered.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

When you've built a life and a family with someone, you want to make sure they're protected, should anything happen to you. While many couples choose to get married to protect their partner's interests, the number of people choosing marriage has fallen steadily since the 1980s.

Family doesn't always mean marriage, and marriage isn't the only way to protect your assets and loved ones. But for domestic partners and unmarried couples, an Estate Plan is a must. You need to know that no matter what happens, the person you love and have built a life with is taken care of and that you're covered if something happens to them.

In this guide, we'll explore four key points of creating a comprehensive Estate Plan with your partner.

  1. Write Your Wills

  2. Hospital Visitation Authorization

  3. Joint Ownership of Assets

  4. Avoid Probate

Write Your Wills

If you or your partner were to die, there is no guarantee that your assets—assets that you consider to belong to both of you—would automatically pass down to them. If you have been together for a long time, it's easy to assume that they would be who would benefit from your Estate. Who else could they logically go to, right? Funny you should ask.

Without a Will or Trust, and if you don't have any children, your property, assets, money, and accounts will go to your closest relatives. This includes any living parents or siblings. In the event of a medical emergency or incapacitation, only a spouse or Power of Attorney can make medical decisions on someone's behalf. Having a Will protects you and your partner going into the future.

When you create your Wills online with Trust & Will, you and your partner will sign a Last Will & Testament, HIPAA Authorization, Living Will, and Power of Attorney. Here's what you should know about each document:

Last Will & Testament: Your Last Will & Testament specifies your last wishes for your possessions, dependents, and final arrangements. If you and your partner live in a house together that you own, and you want to make sure that they inherit the house if you die, you would state that in your Will.

If you and your partner have children, you already know that one of the first lessons you learn as a parent is to prepare for anything and everything, even the unthinkable. In your Will, you and your partner may designate Legal Guardians for your minor children, as well as for any pets you may have together if something were to happen to both of you. This designation ensures that someone you and your partner trust is looking after your children if you can't.

You may have given your final arrangements some thought. Perhaps you know that you would like an intimate viewing and service with final interment near your parents' burial plot. Or maybe you've read about the new advancements in human composting and want your body returned to the earth. You would specify these wishes in your Will to guide your loved ones after your death.

HIPAA Authorization: You may want your partner to have access to your protected health information, including receiving updates on your condition if you were having surgery or otherwise incapacitated. To do this, you would authorize that through the HIPAA Authorization of your Will.

Living Will: Your Last Will & Testament designates your last wishes for your assets, children, and final arrangements. Your Living Will, however, specifies your wishes for your healthcare and medical treatment, should you be unable to speak for yourself. If you didn't want to receive a blood transfusion or for extraordinary measures to be used to keep you alive, you would specify that in your Living Will.

Power of Attorney: A Power of Attorney, also known as an "agent" of your Estate, manages your personal, financial, and medical affairs if you are away or incapacitated and unable to speak for yourself. By naming your partner as your Power of Attorney, they will be able to make medical decisions on your behalf, pay bills from your accounts, and even sell assets if they need to.

Hospital Visitation Authorization

Before January 2011, domestic partners needed to have a Hospital Visitation Authorization to be allowed at their partner's side in case of hospitalization. But in 2011, the Department of Health and Human Services, under President Obama, established a rule preventing hospitals from denying visitation privileges to domestic partners. However, if you're in a domestic partnership or an unmarried couple, there are still circumstances that can arise where you might wish you had one.

If you have a medical emergency and are unconscious, or if you have to have surgery, your partner may not get updates on your condition from your doctors. Those types of updates are typically for someone's immediate family, and an unmarried life partner may not qualify. But by filling out the HIPAA Authorization of your Will, you and your partner won't have to worry about being left out of the loop.

Joint Ownership of Assets

An easy way to make sure that your partner isn't left out in the cold in the event of your death is to own assets together. Joint Tenancy with Right of Survivorship automatically transfers 100 percent ownership of assets, including your home and cars, to the surviving partner.

For you and your partner to both own an equal portion of the asset, you would make sure that both of your names appear on the asset's official title document. This can be the deed to your home or the title to your car.

Avoid Probate

Probate Court is the process in which all Wills must pass through to settle someone's Estate. While some Wills go through Probate fairly easily, that is not the norm. Probate Court can sometimes take months or even years, costing someone's loved ones precious time and money and depleting an Estate's resources.

Generally speaking, if someone can dispute your Will, a Trust may be a better option for you. A Trust-Based Estate Plan allows you to pass assets, such as your home, directly to your partner and avoid the Probate Court process.

A comprehensive Estate Plan will protect domestic partners and unmarried couples, their assets, and families. Trust & Will is the leading voice in online Estate Planning and can help you get started on a Will in less than 10 minutes. Get started on your Will now!