What legally defines “marriage” in your state? What are the basic steps to estate planning for unmarried couples? In Kansas or Iowa, you can be legally married without a license. But you must meet the requirements of common law marriage, such as long-term cohabitation. Common law marriage is not valid in most states, and property rights for unmarried couples are virtually nonexistent. Therefore, you would protect your assets through estate planning in the form of a cohabitation agreement or will.
In my state of Illinois, unmarried cohabiting partners who break up have no rights in the property of the other. In other words, the law of property division and alimony, or support that applies to divorcing spouses, does not apply to unmarried couples who separate. Unmarried couples need to think through estate planning like a lawyer — possibly with the help of one.
The Illinois case, Blumenthal v. Brewer, involved a county judge and a medical doctor. They lived together for 25 years, raised three children, and acquired three homes. They sued each other over the division of their primary home and the ownership of the doctor’s practice. In the end, the judge was told she had no right to any part of the doctor’s practice, even though she had invested money.
The case provides a timely reminder that the law confers certain advantages or qualities to married couples. This is also true in the arena of estate planning for unmarried couples. Consider the following:
None of these preferences necessarily extend to unmarried couples. Certainly, in Illinois, if an unmarried partner dies without a will, the surviving partner receives no portion of the estate. There will be no spousal allowance. The surviving partner has no priority to act as executor or administrator of the deceased spouse’s estate. If one partner has a child not adopted by the other, a court may or may not appoint the surviving partner as guardian.
If there is a disability, a person who legally has no relationship with the disabled partner may have low priority to make healthcare decisions and serve as guardian to protect the disabled partner.
Cohabitation is increasingly considered a normal part of family life.
According to the US Census, in 2021, 17% of young adults age 25-34 live with an unmarried partner. That figure was 15% in 2018. In 1968, only 0.2% of Americans of the same age lived with an unmarried partner. If cohabitation is the new normal, people in this demographic must protect their partners and families. They must seriously consider the process of estate planning for unmarried couples. So, how can romantic partners navigate the lack of property rights for unmarried couples?
Cohabitation agreements are legal contracts or implied agreements, which are much trickier. Between live-in partners, they establish the division or distribution of property. They address ongoing financial support, child custody, and visitation rights. They consider health care directives and other personal matters in the event of a breakup or death. In many cases, this includes a will and powers of attorney.
In happier times, the couple from the Blumenthal case could have participated in mutually beneficial estate planning. A partner could make a will naming his or her partner as beneficiary and as executor of the estate. Such a legal document could also nominate the partner as guardian of a child. The powers of attorney would name the partner to make medical and property decisions in the event of incapacity. A will and powers of attorney give unmarried partners protections the law automatically gives married people.
[Editors’ Note: To learn more about this and related topics, you may want to attend the following on-demand webinars (which you can listen to at your leisure and each includes a comprehensive customer PowerPoint about the topic):
This is an updated version of an article originally published on September 4, 2019. It has been updated by Courtney Smith]
©2022. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here. [and link the word “here” to https://www.financialpoise.com/financial-poise-disclaimers/]
Michelle M. Huhnke is a partner at Sugar Felsenthal Grais & Helsinger LLP. She focuses her practice on estate planning, charitable planning, and wealth preservation. She works with clients and their families to develop estate plans that address varied family circumstances in a caring, detailed way and include efficient estate, gift and generation-skipping tax planning.…
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