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Why should an unmarried couple have an estate plan?

This relates to a couple -either same-sex or opposite sex - who live together in a long-term relationship. Often, the partners have the same plans and desires regarding their estate as would a married couple: in the event of death,... 

they want the partner to be the beneficiary of their assets, and upon the death of their partner, they want their children or other family members to inherit their assets. However, the married couple has some protection under the laws. If they fail to plan, the state has a default estate plan prepared for you. The state has laws under which a surviving spouse is entitled to certain benefits, even if the decedent does not have a Will or other estate plan. Unfortunately, there are no such laws protecting the surviving partner of an unmarried couple. In fact, the laws are stacked against the surviving partner. Therefore, an unmarried couple has an even greater need for estate planning than a married couple. For example, the spouse of a hospitalized person usually has no problem getting information about the patient. However, an unmarried partner of that patient will often be denied any information about the patient, unless the patient is conscious and gives specific permission. I have even heard of a case in which "Bill" was hospitalized and not conscious, and his parents (who did not approve of "Kevin," his long-term partner) refused to let Kevin even visit Bill in the hospital, and would not even tell Kevin anything about Bill's condition. This could have been avoided with proper planning. Another example is in the area of jointly held real estate. A property held by, "David Jones and Mary Smith" will have different legal consequences based on whether they are married or not. If they are married, and David dies, Mary will inherit the property. But if they are not married, when David dies his one-half share will have to go through probate, and unless he had a will, his share will be given to his blood relatives. So Mary may end up being a co-owner with David's parents, children or siblings. You can imagine the fights that will follow in those circumstances. WHAT SHOULD BE CONSIDERED? So what should an unmarried couple consider in creating an estate plan? The same things that a married couple or a single person should consider:

  • If I become injured or sick, and I am unable to make my own medical decisions, who should make those decisions for me? Will it be my long-term partner, or some blood relative who may be appointed by a court?
  • If I am unable to take care of my own affairs, who should have the authority to make legal and financial decisions on my behalf?
  • If I die, who should inherit my assets? Will they be distributed according to my wishes, or according to a formula imposed by a judge?
  • If I die, who will take care of my children? Will I choose a guardian, or will a judge made that decision?

An estate plan should address the following circumstances:

  • If you own real estate, how is it held? What will happen in the event of death or disability, and is that consistent with what you want to happen?
  • Who is named the beneficiary of your retirement accounts (IRA or 401K)?
  • If you have minor children, who will be the guardian of those children in the event of your death?
  • Do you want your partner to inherit some or all of your assets at your death? Or perhaps you want your partner to enjoy the income from your assets as long as he or she lives, but you eventually want those assets to go to your children; how can you arrange for that?

Many unique legal issues can arise between unmarried partners. As experienced estate planning attorneys, we know the tools available for estate planning, and how to use those tools for your special situation. We encourage you to contact us, and discuss your particular circumstances and goals. You deserve the peace of mind that comes from knowing that you have planned for an emergency, and that you have not left your partner without protection. You are entitled to make those decision; don't leave it up to a judge who does not know you, and may not "approve" of your partner.

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Creighton McLean & Shea PLC
14881 Farmington Road
Livonia, MI 48154

Phone: 734-245-9289
Fax: 734-422-0461
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