Living together without getting married has never been so popular. According to 2009 census data, more than 6.4 million opposite-sex unmarried couples live together (which translates to 12.8 million people). There are an additional 750,000 same-sex unmarried couples in the United States (which translates to an additional 1.5 million people). This is a whopping 92% increase since 1990. More than half of all single households have children. The number of cohabiting older people has tripled in the last 10 years and continues to rise. The average American spends most of his life without getting married. If you’re part of an unmarried couple living together, it’s probably comforting to know that you’re far from alone. However, this does not mean that you can ignore how the law affects your relationship.
Because the law considers that there is no formal relationship between members of the same sex and unmarried couples, estate planning is particularly important and should provide as much protection as possible. Common estate planning tools for same-sex and unmarried couples include:
Domestic Partnership Agreements
last will and testament
Revocable Living Trust
irrevocable trust
Durable Power of Attorney for Finance
Living Will and Health Care Surrogate
Restructuring of co-owned assets
Domestic Partnership Agreements: Domestic partnership agreements establish the parameters of a relationship and specify the rights and responsibilities of each partner. They are similar to prenuptial agreements and are recommended for unmarried couples living together, whether they are of the same or opposite sex.
Last will and testament: When you die without a formal will, the state of Florida will provide you with a will and distribute your assets as it sees fit. This is known as “intestate succession” and provides the least amount of protection for your family. Same-sex or unmarried couples are not recognized under Florida intestate statutes. Therefore, upon your death, your partner will have no rights to your estate. The chance of contesting the will may be higher in same-sex and non-married relationships, as family members may not understand the decisions you have made.
Revocable Living Trust: A living trust can be a good option for same-sex or unmarried couples, due to its private and expeditious nature. A living trust also helps avoid probate in multiple locations if you own property in more than one state. A living trust can hold both individual and joint property and is effective as soon as it is funded. In a revocable trust, you (as the “grantor”) retain control over the trust and its assets for as long as you are alive. If you don’t want creditors to access trust assets, an irrevocable trust is a better option. A pour can supplement a living trust and should be used to distribute any property not previously placed in the trust.
Lasting Power: A power of attorney for legal or financial matters allows you to supplement your partner in managing your affairs, in the event that you are unable to do so yourself. It is also useful as proof of your probate intentions and the nature of the relationship, in the event of a contested will.
Living Will and Health Care Surrogate: A living will specifies your wishes for medical care and artificial life support. Without specifically refusing artificial life support through a properly executed living will, the hospital must keep you alive by any means necessary, no matter how much it costs or what your true wishes are. The designation of a health care surrogate must accompany the living will because it names someone to make medical decisions for her in the event she is unable to communicate her wishes and specify her wishes regarding artificial feeding. Having a health care surrogate is crucial because your partner will have no legal rights to your care without one.
Joint Tenancy: Same-sex and unmarried couples can benefit from joint ownership of real estate as joint owners with rights of survivorship, which means that when one spouse dies, the other can take sole ownership of the property, even without a will. This designation can avoid estate taxes, capital gains taxes, gift and inheritance taxes.
