What Happens If an Unmarried Partner Dies?

POSTED ON: July 3, 2021

A proper estate plan will help those left navigate the disposition of assets and the probate court system, especially for unmarried couples and some married same-sex couples.

What Happens If an Unmarried Partner Dies?

If you, like so many others, found yourself settling the affairs of a loved one in the last 18 months, you may be well aware of the challenges created when there is no estate plan. The lack of planning can create an enormous headache for loved ones, explains a recent article titled “3 Estate Planning Tips for Same-Sex Couples” from The Street. If this is true for married couples, then it’s even more important for unmarried couples.

Despite the title of the article, the effects of someone dying who is in unmarried heterosexual couple is the same as a same-sex couple.  There is no difference.  The deceased person is treated as Single.  There are very many couples who have long term relationships (with or without children), effectively classified as single under the law, that want to leave a legacy for their loved one.

Under Louisiana law, if there is not Last Will and Testament (or Living Trust) the property of a person that is unmarried (single) devolves by default to the children of the deceased (treated as single) on an equal basis.  If the deceased has no children, then it is inherited equally by the deceased siblings, equally, subject to a usufruct in favor of the deceased parents.  In other words, the inheritance is shared between the deceased’s siblings and parents.

Most often, the deceased does not intend for this to happen.  In fact, if the unmarried couple jointly own property together, such as a home, without proper estate planning, the deceased’s family members (who can be numerous), will become co-owners of the surviving partner!  This can be a tragedy, and it makes for a built-in lawsuit.

Planning for incapacity and death is not fun, but unmarried couples in serious relationships need to plan for the unknown.  There are three key issues to address: inheritance, incapacity and end-of-life care and beneficiary designations.

A will establishes an unmarried partner’s right to inherit property from the decedent. It is also used to name a guardian for any minor children. Concern about the will being contested by family members is often addressed by the use of trusts. When property is transferred to a trust, it no longer belongs to the individual, but to the trust. A trustee is named to be in charge of the trust. If the surviving partner is the trustee, he or she has access and control of the trust.

A trust helps to avoid probate, as property does not go through probate. A will also only goes into effect after the person who created the will passes away. A revocable living trust is effective as soon as it is established, as long as it is properly funded. Trusts allow for more control of assets before and after you pass. The trustee is legally bound to carry out the precise intentions in the trust document.

Establishing a trust is step one—the next step is funding the trust. If the trust is established but not funded, there is no protection from probate for the assets.

Incapacity and end-of-life planning allows you to make decisions about your care, while you are living. Without it, your unmarried partner could be completely shut out of any decision-making process. Here are the documents needed to convey your wishes in an enforceable manner:

Healthcare power of attorney (proxy). This document allows you to name the person you wish to make healthcare decisions on your behalf. You may be very specific about what treatments and care you want—and those you don’t want.

Healthcare Directive (Living Will). The healthcare directive lets you designate your wishes for end-of-life care or any potentially lifesaving treatments. Do you want to be resuscitated, or to have CPR performed?

Durable financial power of attorney. By designating someone in a financial power of attorney, you give that person the right to conduct all financial and legal matters on your behalf. Note that every state has slightly different laws, and the POA must adhere to your state’s guidelines. You may also make the POA as broad or narrow as you wish. It can give someone the power to handle everything on your behalf or confine them to only one part of your financial life.

Beneficiary designations. Don’t forget about life insurance policies and retirement accounts such as IRAs and 401(k)s.  Generally, these assets are not paid out pursuant to a Will, unless the owner fails to name a beneficiary.  Almost all tax-deferred retirement accounts and pensions permit a beneficiary to be named to inherit the assets on the death of the original owner. These accounts do not go through probate (again, unless a beneficiary is not named). Check on each and every retirement account, insurance policies and even bank accounts. Any account with a beneficiary designation should be reviewed every few years to be sure the correct party is named. Estranged ex-spouses have received more than their fair share of happy surprises, when people neglect to update their beneficiaries after divorce.

Review these steps with your estate planning attorney to ensure that your partner and you have made proper plans to protect each other, even without the legal benefits that marriage bestows.

BOOK A CALL with Ted Vicknair to discuss a plan in the event you don’t have one now.  You need to know how your particular estate can be changed from “single” status so that it will be inherited by who you want.  The call is free.

Reference: The Street (June 2, 2021) “3 Estate Planning Tips for Same-Sex Couples”

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