Estate Planning for Unmarried Partners: Tips, Tricks, and What to Avoid

By: Michael B. Shapiro, Esq., and Elizabeth Conklin

Introduction

In a recent study by the Pew Research Center, fifty-nine percent of adults between the ages of eighteen and forty-four claimed to have lived with an unmarried partner at some point in their lives.[1] Currently, approximately seven percent of Americans – over 8,000,000 people – live with an unmarried partner.[2] This number will most likely increase in the coming years, since two of the most common reasons that one cohabitates with a partner are convenience and financial strain.[3] A dwindling number of states recognize common law marriage by statute;[4] similarly, since same-sex marriage has been legalized, domestic partnerships have become essentially redundant. These types of partnerships afford couples with more rights, but often, those opposed to marriage may also be opposed to other legal partnerships. Accordingly, it is now important than ever that unmarried couples who do not plan to ever marry or even register a domestic partnership plan properly for their future together.

The Pitfalls of Unmarried Cohabitants

An unmarried cohabitating partner does not receive any share of a deceased person’s intestate estate. In other words, if a person dies without a will, her unmarried partner—no matter if they are engaged, living together, or have been together for decades—will receive no portion of the deceased partner’s estate. This is a uniform standard across the country that applies to all relationships other than legally recognized marriages.  Under New York’s EPTL § 4-1.1(a), an intestate estate would be split instead between the decedent’s children, parents, siblings, or even distant relatives, depending on the decedent’s individual family circumstances. [5] An unmarried partner is not treated as a spouse in New York.

Furthermore, an unmarried partner would not be automatically considered a beneficiary of a retirement account or a life insurance policy,[6] and the unmarried partner cannot make any medical decisions for the individual nor handle the partner’s finances, but all of these rights are inherent in a marriage. Lastly, while legal parents of a child have equal rights to see and care for the child, even if they are unmarried, this rule does not extend to minors who are only the legal child of one of the two partners.

A Troubling Example

Consider the following example: Jane is a widow with one ten-year-old daughter, Jenny. The two of them live in a modest home which Jane owns alone. Jane has been dating Bob for five years; Bob moved in with Jane and Jenny three years ago. Jane and Bob have not gotten married because they do not want to spend money on a big wedding, and while both Jane and Bob have repeatedly expressed that they think of each other as co-parents to Jenny, Bob has made no plans to adopt Jenny. Tragically and unexpectedly, Jane passes away without an estate plan.

With no estate plan in place, Bob will receive no part of Jane’s estate. Her entire estate, including the couple’s personal residence, would most likely go to Jenny. However, since Jenny is a minor, the estate would only be devised to her in theory. In actuality, it would be devised to her court-appointed guardian, who would hold it for her benefit. Perhaps the court would appoint as Jenny’s guardian Jane’s elderly mother or Jane’s sister who lives out of state. Bob would not only lose ownership of the home in which he lives, but he would also have no legal right to see or gain custody of Jenny, even if he treated her as his own daughter while Jane was alive.

How an Estate Plan Can Help Unmarried Partners

However, the proper estate plan can easily remedy these issues. A will would allow a decedent to dispose of her property as she wishes. In other words, she can give a percentage (or the entirety) of what would be her probate estate to her unmarried partner. This includes both monetary assets and any real property—that is, residential or business property—that she wholly owns. A will would also specify the decedent’s wishes about who would serve as the guardian of her minor child. While this appointment is not legally binding, it would guide the Surrogate’s Court in its appointment of a guardian.[7] Thus, someone like Bob—who has raised Jenny from childhood, even though he is not her legal father—has a better chance of being appointed as Jenny’s legal guardian by the court if Jane specified that wish in her estate planning documents. In such case, Jane could have left her house to either Jenny or Bob; if she left it to Jenny, Bob would be responsible for it as her legal guardian and could certainly live there with Jenny.

Alternatively, depending on the make-up of the individual’s assets, a will can be bypassed entirely. If the majority of the individual’s assets falls into real property or retirement accounts, then a partner can become the beneficiary using less time-consuming and costly methods. For example, assume that Jane does not have a child. Jane and Bob live together—just the two of them—in the house that Jane owns. If Jane lists Bob’s name on the deed and declares them joint tenants with rights of survivorship, and she has no other major assets besides the house, then Bob will be protected after Jane’s death. As joint tenants, the two of them share the property equally, and they both enjoy the same rights to the property simultaneously. Since there are “rights of survivorship,” this means that Bob essentially absorbs Jane’s share after her death and owns the property outright without any need to probate the property.[8]

Furthermore, if the majority of an individual’s assets fall into a retirement account, such as a 401(k) or an IRA, merely changing one’s documents to list her partner as the primary beneficiary will ensure her partner will receive at least some monetary benefit after her death.

With ancillary documents, like a healthcare proxy or a durable power of attorney, an individual can appoint her unmarried partner to manage his healthcare or finances if the individual is not competent to act on her own. These appointments will not necessarily protect one’s partner, but it will ensure to the principal that her medical and financial wishes will be respected by appointing someone she trusts.

Conclusion

With three documents—a will, a healthcare proxy, and a power of attorney—you and your partner can ensure you will share your assets after death and responsibility in the case of incapacitation. As we illustrated in our example above, the absence of these documents could create significant issues in the event of a partner’s death or incapacity, with outcomes deviating even further from one’s wishes than they would if a couple were married.

If you would like to discuss these issues with an attorney who can explore the options that are right for you and your partner, contact Falcon Rappaport & Berkman LLP to schedule a initial consultation by filling out our contact form below or calling us at (212) 203-3255.

[1] Juliana Menasce Horowitz et al., Marriage and Cohabitation in the U.S., Pew Research Center (Nov. 6, 2019), https://www.pewresearch.org/social-trends/2019/11/06/marriage-and-cohabitation-in-the-u-s/

[2] Id.

[3] Id.

[4] Common Law Marriage by State, Nat’l Conf. of State Legislature (Mar. 11, 2020), https://www.ncsl.org/research/human-services/common-law-marriage.aspx. It should be noted that where common law marriages are recognized, these circumstances would not apply.

[5] Est. Pow. & Trusts Law § 4-1.1(a) (2012).

[6] See 29 U.S.C. § 1055(a)(2).

[7] See Est. Pow. & Trusts § 13-A-1(n) (2012).

[8] See Est. Pow. & Trusts § 6-2.2 (2021).

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