If you’re not married, but in a relationship, you might be surprised to learn that your partner could have legal rights to your estate upon your death.
Committed Intimate Relationship Doctrine: When unmarried persons live together as a couple for a “significant” period of time, they each acquire rights to the property of the other person, similar to rights enjoyed by married couples. In Washington state, this is none as the Committed Intimate Relationship Doctrine.
On the other hand, long-term, committed partners have no rights to be by each other’s side if there’s a serious illness, accident, or other event that lands one of the partners in the hospital.
Fortunately, with a good Estate Plan, everything you want to accomplish – having your non-married status, making sure property goes where you want it to go when you die and the right to be by each other’s side at the hospital – all can be achieved.
Why Are Estate Plans Essential for an Unmarried Couple?
The legal documents that every person needs, regardless of marital status, consist of the documents that are in effect while you are living, and the documents that provide for disposition of your assets after you have passed.
The latter is appropriately known as dispositive Estate Planning documents. The Will is probably the best-known dispositive document. A Will ensures that your assets go where you want them to go. For those in a Committed Intimate Relationship, a Will ensures that your partner inherits from you what you want them to inherit: nothing more and nothing less.
The other essential Estate Planning documents are those in effect during your lifetime. These documents, often referred to as “Living Documents”, create the legal recognition and authority for one person to speak and act on behalf of another, if needed. These documents are the Durable Power of Attorney for Healthcare, Durable Power of Attorney for Finances, and Advance Directive (aka Living Will and Health Care Directive).
1. Durable Power of Attorney for Health Care (HCPOA)
A Durable Power of Attorney for Health Care is the legal document that authorizes someone to obtain medical information from the provider and give direction on medical treatment in the event you can’t speak for yourself. This document allows you to grant authority to your partner, not only to speak with your medical providers, but to give directions about your medical treatment.
Without a Durable Power of Attorney for Health Care, your partner won’t be able to get information from your health care team, nor make medical decisions on your behalf.
Who is your decision-maker for your medical treatment if you don’t have a Health Care Agent appointed under your Durable Power of Attorney for Health Care?
Absent a HCPOA, state law specifies who will make medical decisions for you when you can’t. Your medical team will follow state law and, in the order specified in the statute, look first to your parents, then to adult children, followed by siblings, and on down the “line of succession” if necessary. The person the law assigns to be your voice may be some family member that you might not want to direct your medical treatment.
Or, the court can appoint a legal guardian, who may be someone you’ve never met.
The moral of the story: Create a Durable Power of Attorney for Health Care that names your partner (or whomever you trust, if not your partner) to act on your behalf in the event that you’re not able to make decisions for yourself.
2. General Durable Power of Attorney for Finances (GDPOA)
A General Durable Power of Attorney for Finances is similar to the Durable Power of Attorney for Health Care. It authorizes someone you choose to act on your behalf concerning your finances in the event you are unable to act yourself.
For instance, if you are suffering from the ill-effects of medical treatment and you are not able to manage your own finances, with a General Durable Power of Attorney, the person you choose (known as your agent, “attorney-in-fact” or simply “POA”) can pay your bills and conduct business on your behalf.
There are safety nets in place that make abuse of this power unlikely to occur. The most effective protection is having a qualified Estate Planning and Elder Law attorney draft the document. Online forms do not contain protections. Importantly, with a GDPOA, you still retain power over your finances. Your agent owes a fiduciary duty to you to act only in your best interests. And, if for any reason you no longer wish for this document to be in effect, you can revoke it, as long as you have capacity. And, somewhat surprising and frustrating to many, the GDPOA ends upon your death.
The value of the General Durable Power of Attorney is that it gives your partner the ability to help you with your finances if you need it.
Why is a General Durable Power of Attorney important for unmarried partners?
This document is important because, without it, your unmarried partner doesn’t have the legal right to make financial decisions for you. Even if your partner is a co-owner of your bank account, there are situations in which joint account ownership isn’t enough. In the event you lose capacity, your partner cannot act on your behalf. For instance:
• Without a GDPOA, your partner cannot make the financial arrangements to admit you to the hospital or have you transferred to another facility if necessary.
• If you own a home together and your partner wants to sell it, they can’t because your name is on the deed also. A General Durable Power of Attorney is needed to give them legal authority to sell your interest in the house.
• If you are incapacitated and your partner does not have a GDPOA for you, the court will appoint a conservator to handle your finances. This person may not be a person that you know. Or it may be a person that you know but don’t trust with your money.
If you want your partner to have legal authority to assist you financially if you become ill or incapacitated, and want to avoid court involvement, you must give them that authority through a General Durable Power of Attorney for Finances.
3. Living Will (aka Advance Directive or Health Care Directive)
The third Living Document is commonly called a Living Will. A Living Will is an Advance Directive or a Health Care Directive.
This document specifies in writing what procedures you want should you be at end-of life. If an accident or illness leaves you on life support with no hope of recovery, you want someone to be your voice and state your wishes regarding quality vs. quantity of life.
The medical team will look to the person appointed under your Durable Power of Attorney for Health Care; your Health Care Agent, to make decisions about what treatment you will receive. Without a Living Will specifying what YOU want, your Health Care Agent will have to make the decision based on what they believe you would want. Even if they have such knowledge, such a decision is a heavy burden. By putting your wishes in writing in a Living Will, your voice will be heard, even when you can’t speak. And should your Health Care Agent ever have to make a life-or-death decision, you will have given them some measure of peace knowing they are carrying out your wishes.
4. Last Will and Testament
A Will is a dispositive document that states how you want to distribute your assets after your passing.
Earlier we mentioned the Washington state legal doctrine known as the “Committed Intimate Relationship Doctrine” (“CIR”), which, under certain circumstances, gives unmarried partners legal rights to each other’s property. But determining whether this doctrine is applicable and, if so, exactly who will get what, is far from simple.
Very likely, there will be litigation to settle your estate unless there is a Will (or Trust). Litigation is costly, both financially and emotionally for everyone involved.
A better, clearer, and far less costly alternative to litigation is to have a Will. Why is a Will necessary for unmarried partners?
The legal authority you granted to your partner under your Living Documents as your Health Care Agent and financial Power of Attorney evaporates upon your passing. Without a clear legal right to your property, litigation will be required to determine property rights.
A key question in court will be: does the relationship fall under the Committed Intimate Relationship (CIR) doctrine? Did the couple held themselves out as married, referring to each other as spouses? How long was the couple together? A Washington court decision held that two years is sufficient to find a CIR, though ten to twenty+ years is more typical.
Here are some possible situations that could arise without a Will upon your passing:
• Even if your partner lives in your house, if the house is titled only in your name, your partner may have to vacate the house upon your passing.
• If your partner was not co-owner of your bank account, then your money may be given to the person the probate judge determines should receive it according to state law. State law includes the laws of intestacy, which gives preference to biological relations, and not a partner.
• If you and your partner are raising children together, following your death the probate judge may award custody of your minor children to someone other than your partner, especially if your partner has no legal relationship (biological or adopted) with your children.
A simple way to avoid a calamity is to give your partner exactly what you want them to have by creating a Will.
5. Revocable Living Trust
There are many different kinds of Trusts, each serving different functions. Some stand alone; some are embedded within a Will. Probably the best-known Trust is called a Revocable Living Trust.
A Trust is a document that is intended to control your assets. The “living” part of this title is because this Trust is established while you are living. And the “revocable” part of the title stems from the fact that you can change the terms of the Trust at any time, including revoking it in full (unlike an Irrevocable Living Trust).
All of your assets that can be, must be titled in the name of the Trust. You, as the Trustee, have full access to all your assets while you are alive. The Successor Trustee (meaning the person you designate to handle the Trust after you have passed) has full
access upon your death. The primary purpose of a Revocable Living Trust is to allow for a seamless transfer of assets upon your death without the need for probate.
The Revocable Living Trust can be a very effective way to provide for your non-married partner. Your attorney will help you decide if a Will or Trust is a better Estate Planning tool for you.
Estate Planning Gives Your Unmarried Partner Rights
Through proper Estate Planning, your unmarried partner can have nearly the full privileges they would have as your married spouse.
That being said, there are some rights that only a legal marriage can confer, such as the right to your social security benefits, legal standing in a wrongful death or survival lawsuit, employment survivor benefits, etc.
But, by creating your Estate Plan, you can accomplish your goals of making sure your partner can speak on your behalf and make decisions for you if you are incapacitated; and they will receive the assets you want them to receive upon your passing.
A good Estate Plan protects you, and the ones you love; and that’s the most important goal of all.
For more information, call or email us at ELG Estate Planning.