If you are part of an unmarried couple and do not have a valid domestic partnership or civil union recognized in the state where you reside, you could face many serious issues regarding your children, pets, money, property, health care, and estate, including:
1. Losing your home after your partnerís death if your name is not on the title to property or lease.
2. Losing custody of your children if you are not listed as their legal parent, have not formally adopted them, and have no other legal parental rights.
3. Losing your pets after the death of your partner if the pets were owned by your partner and he or she dies without a will or pet trust leaving the pets to you.
4. Being unable to visit your partner in a hospital or make medical decisions for your partner if your partner has not named you his or her agent for health care in a power of attorney.
5. Being unable to manage financial affairs for your partner if he or she becomes disabled or incapacitated and has not made a financial power of attorney.
6. Being unable to share an assisted living apartment or nursing home room with your partner.
7. Losing income, government benefits, health insurance, retirement benefits, and investments after your partner dies.
8. Paying higher federal estate taxes or losing tax deferred benefits on retirement accounts.
9. Being unauthorized to serve as administrator or personal representative of the estate if your partner dies without making a will naming you as executor.
10. Being unauthorized to serve as conservator or guardian of your partner if he or she becomes unable to manage his or her affairs if your partner fails to name you as agent in a power of attorney for finances.
Domestic Partnership Agreements
A domestic partnership agreement is a written agreement in which two individuals agree to be responsible for each otherís welfare and basic living expenses during the domestic partnership. In states that recognize domestic partnerships, a domestic partnership agreement or registration provides many of the same legal rights and benefits as marriage. A domestic partnership agreement only confers rights and benefits to the extent such rights and benefits are recognized under the laws of the state where the domestic partners are domiciled.
Does a Domestic Partnership Allow My Partner to Inherit My Estate?
In those states that recognize domestic partnerships, a valid domestic partnership may confer some of the same rights of married spouses, including inheritance rights if the partner dies intestate. While a domestic partnership agreement may provide certain property and inheritance benefits, it is not a substitute for a will and other estate planning documents such as a power of attorney, health care directive, living trust, and pet trust. If estate taxes are a concern, you should also consult an estate planning attorney regarding the impact of estate tax laws on your domestic partnership. Developing a thorough estate plan with the help of a tax professional or estate planning attorney is essential. For more information on state intestate succession laws and domestic partnerships, see Partners Share.
When You Move to Another State
If you register a domestic partnership in one state and move to another state, your domestic partnership may not be recognized in your new state. Even if you move to a state that recognizes domestic partnerships, your partnership may not be valid there unless you comply with that stateís registration requirements. Before moving, check the laws of the state where you are planning to relocate.
How to Create More Financial Security for Your Partner
If you are part of an unmarried couple, there are many things you can do to increase your partner's financial security. When you make an estate plan and give your partner authority under that plan, it creates more financial security for your partner. There are also other steps you can take, such as buying a life insurance policy and changing how you hold title to property, that will make life much easier for your partner if something happens to you.
Note: This article discusses the estate planning concerns of unmarried couples, including unmarried couples with children. This article does not address estate planning issues for same-sex married couples. To learn about estate planning issues for spouses in a same-sex marriage, refer to our page on
same sex marriage.
Protect Your Partner With Estate Planning
If you have a live in partner and are not married, you may want to leave your home to that person when you die. However, unless you execute a valid will or revocable living trust, or take other legal steps to protect your partner, he or she could be forced to vacate your home when you die. If you do not have a financial power of attorney, your partner may be unable to pay bills, run your business or manage your affairs if you become disabled.
Another painful thing many unmarried partners face in times of tragedy is being unauthorized to handle their partnerís medical decisions and final arrangements. Unless you have executed a durable health care power of attorney or advance health care directives naming your partner as agent, your partner will not be able to review your medical records or tell your physician your preferences regarding treatment. If you have not taken steps to authorize your partner to handle your funeral and other final arrangements, your legal next of kin will control the disposition of your remains.
Consider how the person you share your life with would be treated if something happened to you. Executing basic estate planning documents and completing related documents can make an important difference for both of you.
Benefits of Domestic Partnerships
In states which recognize them, domestic partnerships can give an unmarried couple many of the same rights as married couples. If you have a registered domestic partnership in a state that recognizes it, your domestic partner may be able to:
1. Retain custody of children born or adopted during the domestic partnership.
11. Authorize an organ or tissue donation after your death.
12. Be named on your death certificate.
13. File an injury, loss of consortium or wrongful death lawsuit arising from your injury or death.
Even if you live in a state that recognizes domestic partnerships, the laws of your state may not provide all the rights and benefits outlined above. The laws on domestic partnership vary by state.
Just as there are advantages to a domestic partnership, there may be disadvantages in some situations. Because this is a complex area of law, if you are part of an unmarried couple, consult an attorney licensed in your state regarding the best estate planning strategy for you.
For Unmarried Couples with Children
In states where domestic partnerships are recognized, children born or adopted during the partnership may be presumed to be the legal children of both partners. In these states, children of a registered domestic partnership also generally have the same intestate succession or inheritance rights as children of a married couple. In addition, domestic partners may inherit from the children of their partnership under intestacy laws. Despite the rights regarding parentage usually afforded to domestic partners in states that recognize such partnerships, lawyers often recommend domestic partners complete a second parent adoption to solidify the parental rights of both partners.
The laws regarding inheritance and probate often treat the children of unmarried couples harshly. For information on children born out of wedlock and the right to inherit, visit our page on Non-Marital Children.
Unmarried Partners and Power of Attorney
If you are unmarried and become disabled or incapacitated, your partner may not have the legal right to take certain actions on your behalf. In some situations, the law may give such rights to a relative or family member rather than your partner. There are steps you can take to increase the rights your partner would otherwise have. One of those steps is creating a Durable Power of Attorney.
A Durable Power of Attorney for Finances is inexpensive to create and execute. If you want to ensure your partner has the right to manage your finances and property, rather than a relative or state appointed representative, a Durable Power of Attorney may be a good option.
Community Property and Domestic Partners
If you live in a community property state and are in a domestic partnership, property you acquire during the partnership may be treated as community property. When deciding how to distribute your estate, it is important to understand what property will be treated as community property and what property will be treated as separate property.
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