While it’s a seemingly simple topic, understanding an unmarried couple's rights when one dies is actually a bit more complex than you may think. This stems, in part, from the fact that different states have individual rules, regulations and laws about partners’ rights. Additionally, various circumstances can result in a multitude of outcomes, depending on what rights may or may not be afforded an unmarried couple.
But just because you’re not married doesn’t mean you don’t have rights. Here, we’ll explain some of the subtle differences you should know about if you’re one of the 18+ million adult unmarried couples living together in the United States. Preparing for the future is easier when you understand what you’re entitled to you. Knowing what actions you can take to protect yourself (and your loved one!) is the first step.
What Rights Do Unmarried Couples Have If One Dies?
Unmarried couples - same sex, straight, or any long-term cohabits, regardless of length of relationship - face a unique set of challenges should their relationship ever be questioned in a court of law. Unfortunately, domestic couples often legally have no automatic right to inheritance if a partner passes away without a Will or any other Estate Plans in place.
So for cohabitating couples, if one passes away without a Will (which is called dying Intestate), it can be devastating. This is because there are no guaranteed inherent benefits under state Intestacy rules for unmarried couples.
What does this mean? Essentially, it means that unlike married couples, a surviving partner in an unmarried relationship has no automatic legal right to their deceased partner’s property or assets. Instead, in the absence of a legal Estate Plan, state law dictates how an estate is distributed and who gets what (and the order typically follows a bloodline succession, not a partnership).
There is a way around this though. Proper steps can be taken to title property and assets so both partners are protected. This is especially important if one of them ever passes away. Because there’s no federally mandated guideline for how domestic partners and unmarried cohabitants should be treated in the eye of the law, and since they’re seen legally as “individuals,” it’s essential to understand how to protect yourself in the state you live in.
Fortunately, researching individual state law is relatively easy. First, you want to find out if your state is one of the nine in the country that recognizes common law marriage (also known as non-ceremonial marriage). Common law is a recognition of “marriage” between two people who have lived together a certain number of years and meet very specific criteria.
*As of January 12, 2021, the Colorado Supreme Court made a ruling to include recognizing LGBTQ couples in their definition of common law marriage.
Other Common Questions About Unmarried Couple’s Rights When One Dies
Regardless of what is (or is not) afforded to you at the state level, you can add a layer of protection through proper Estate Planning. By ensuring you title assets and property a specific way, you can protect both parties, regardless of marital status. Most people have questions about this - so let’s look at some of the more common concerns out there.
What is a Civil Partnership?
Civil Partnership is a common term used in the UK for a legally recognized relationship that’s very close to a marriage (just without the formal document and ceremony). In the U.S., this type of relationship is also referred to (depending on what state you’re in) as a Civil Union, Domestic Partnership or Registered Partnership.
These relationship designations are similar to marriage in that they can offer some legal rights to those in an unmarried relationship. But because they’re not universal or federal, rights to estates can widely vary. Learn more about which states offer some form of rights:
States That Recognize Civil Unions:
Colorado
Hawaii
Illinois
New Jersey
Vermont
States That Recognize Domestic Partnerships:
California
Main
Nevada
Oregon
District of Columbia
States That Converted Civil Unions to Marriages After the Passage of Same-Sex Marriage Laws:
Connecticut
Delaware
New Hampshire
Rhode Island
Vermont
Who Inherits If My Partner and I Are Not Married?
As previously noted, when one person passes away, a surviving non-married partner is generally not entitled to any property that was not at least co-titled in his or her name. Typically what happens is the state’s Intestacy laws dictate next of kin order, which establishes who is legally entitled to the decedent's assets and property (spoiler alert: it’s generally not the unmarried partner).
What Legal Rights Do I Have If My Partner Dies?
Unfortunately, according to the law, unmarried couples who have not created a Trust or Will likely have extremely limited rights if one of them passes away. That’s why a solid Estate Plan is so important. It can offer the protection you’re otherwise severely lacking.
How to Take Action to Protect Your Partner - Create Your Estate Plan
Titling property with Joint Tenancy with Rights of Survival is one way to ensure your partner receives the property you want them to have. When titled in this manner, assets can automatically pass through to a surviving partner.
Another way to protect each other is by creating an Estate Plan that specifically and directly includes your partner in a Will or Trust. Keep in mind, whereas Wills are public knowledge and must go through probate (which may potentially open the door to family members objecting), Trusts are private. The privacy a Trust can offer means even more protection if you’re concerned about family becoming involved.
A complete Estate Plan is the best way unmarried couples can protect one another. Learn more about the services Trust & Will offers and how you can create the perfect Estate Plan that’s just right for your needs.
Love comes in all forms. Just because you’re not in a “traditional” marriage doesn’t mean you shouldn’t have rights and be able to protect each other when it comes to your estate. Understanding the law and preparing a legal Trust or Will is the single most important thing you may ever do for each other.
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