Living together while remaining unmarried has never been more popular. According to the 2009 Census data, over 6.4 million opposite-sex unmarried couples live together (which translates into 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. Over half of all unmarried households have children. The number of cohabiting seniors has tripled in the past 10 years and is continuing to rise. The average American spends the majority of his or her life unmarried. If you are part of an unmarried couple living together, it’s probably comforting to know that you are far from alone. However, this doesn’t mean that you can ignore how the law affects your relationship.
Because the law considers there to be no formal relationship between the members of same sex and unmarried couples, estate planning is particularly important and must provide as much protection as possible. Common estate planning tools for same sex and unmarried partners include:
· Domestic partnership agreements
· Last Will and Testament
· Revocable Living Trust
· Irrevocable Trust
· Durable power of attorney for finances
· Living will and health care surrogate
· Restructuring of assets into joint tenancy
Domestic Partnership Agreements: Domestic partnership agreements set out the parameters of a relationship and specify the rights and responsibilities of each partner. They are similar to prenuptial agreements and are well-advised for unmarried couples who live together, be they same-sex or opposite sex.
Last Will and Testament: When you die without a formal will, the state of Florida will provide a will for you and distribute your assets as they see fit. This is known as “intestate succession” and it provides the least amount of protection to your family. Same sex or unmarried couples are not recognized by Florida intestacy statutes. Thus, upon your death, your partner will have no rights to your estate. The chance for a will contest may be greater in same sex and unmarried relationships, as family members may not understand the choices you have made.
Revocable Living Trust: A living trust may be a good option for same-sex or unmarried couples, due to its private and expeditious nature. A living trust also helps to avoid probate in multiple venues if you own property in more than one state. A living trust can hold both individual and shared property and goes into effect as soon it is funded. In a revocable trust, you (as the “grantor”) retain control over the trust and its assets while you are alive. If you do not wish for creditors to access the trust assets, an irrevocable trust is a better option. A pour over can supplement a living trust and should be used to distribute any property not previously placed into the trust.
Durable Power of Attorney: A power of attorney for legal or financial matters allows you to appoint your partner to manage your affairs, should you become unable to do so. It is also helpful as evidence of your testamentary intentions and the nature of the relationship, in the event of a will contest.
Living Will and Health Care Surrogate: A living will specifies your wishes for medical care and artificial life support. Without specifically declining 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 desire is. A health care surrogate designation should accompany the living will because it appoints someone to make medical decisions on your behalf in the event that you are unable to communicate your wishes and specifies your wishes regarding artificial nourishment. It is crucial to have the health care surrogate in place because your partner will have no legal rights regarding your care without one.
Joint Tenancy: Same sex and unmarried couples can benefit from owning real estate together as joint tenants with rights of survivorship, which means that when one partner dies the other can take sole ownership of the property even without a will. This designation can avoid estate taxes, capital gains taxes, gift taxes, and probate.