Marital Status Matters: Special Considerations for Unmarried Couples

March 1, 2024 | Author: Deppe Fredbeck & Yount LLP

Deppe Fredbeck & Yount Franklin, Indiana

A person’s marital status can affect all sorts of legal issues. In this post, we discuss some important considerations for people who are in romantic relationships but are not married, including real estate, estate plans, estate administration and health care decisions.

If you are in a long-term relationship, you may want your partner to receive some or all of your assets after your passing. There are many ways to go about this: with a Will, a trust, co-ownership, transfer on death designatio, or beneficiary designation. In our view, the simplest and surest way to ensure that your significant other receives something is to sign a Will that makes your wishes clear. Failure to plan could mean that your partner will end up with nothing of yours. If you pass away without a Will, your probate property will pass to your legal heirs, which are determined by the Indiana Code’s rules of intestate succession. Partners are not included in that section. Only family members can be legal heirs under the rules of intestate succession. Who your legal heirs depend on your unique family situation—they could be people who you would want to inherit assets anyway, like your children. Or, they could be people who you barely know.

Unmarried couples who live together need to be very careful about how the home is titled. If it’s only owned by one of you, you need to think through what would happen if the owner dies first. Will the owner’s legal heirs let the other stay in the home, or sell it to them at a fair price? Will the bank let the partner assume the mortgage so that they can continue to live there? Does the mortgage have an “acceleration clause” that requires the balance of the loan to be paid upon the owner’s death?

Unmarried couples, just like blended families, need to prepare for the possibility of intrafamily conflict. When you sign a Will, you nominate the person you want to serve as the executor (also known as personal representative) of your estate. In a nutshell, the executor is the person who makes decisions about the administration of an estate. It should be a person who is trustworthy and responsible. With a Will, you can name whomever you want to serve in that role, whether or not you are related to that person. Without a Will, a judge decides who will serve and the Indiana Code provides a list of people who should be considered first. Partners are not specifically included on that list.

Assets are just one of the pieces of the legal puzzle for unmarried couples. Another situation is dealing with medical issues in the case of emergency or incapacity. If you need someone to make medical decisions for you, without a written healthcare advanced directive, your partner will not be able to make those decisions for you. Similar to what happens if you don’t have a Will, the Indiana Code provides an order of priority of who can make medical decisions for you if you don’t have an advanced directive. Yet again, partners are not even on the list.

Some people without estate and disability plans may think that their legal heirs, whether that be children, grandchildren, or siblings, will “do the right thing” and give their partner a portion of the money after they die. Others may hope that their family members will work with and include their significant other in times of medical crisis. But why take that chance? Even if you only want your partner to receive a portion of your assets, it is better to specify that portion in a binding legal document. The same goes for your health care representative: make it official. You can always change your documents if you change your mind.