Estate Planning for Unmarried Couples

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Estate planning for unmarried couples can be a bit tricky because Ohio’s marriage laws and probate laws do not afford the same protections for unmarried couples that they do for married couples. Therefore, unmarried couples must take steps to ensure that their partners are protected when they die. Otherwise, the partner may not be eligible to inherit property from the deceased partner according to Ohio probate laws.

What is common law marriage?

In most states, you must have a valid marriage license in order for your marriage to be recognized by the state; however, some states recognize common law marriage in addition to unions that have a marriage license or marriage certificate. Common law marriages are informal marriages where a couple is considered legally married even though the couple does not have a state-issued marriage license or marriage certificate. Only eight states have statutes that recognize common law marriages:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas
  • Utah

The laws in each of the above states differ regarding what constitutes a common law marriage within that state. And in some states, court cases have established common law marriage even though the state does not have a statute that expressly allows for these types of marriages.

Ohio recognized common law marriages until October 1991. Any couple desiring to be legally wed in Ohio after October 1991 must have a valid Ohio marriage certificate. However, Ohio does still recognize common law marriages established prior to October 1991 or common law marriages established in other states that are valid by that state’s statutes or case law.

How does a common law marriage affect estate planning?

If you die without a valid will, Ohio’s intestate laws define who will inherit your property and how your property will be divided between your heirs. Friends, charities, and even some family members may not be eligible to inherit your property under intestate laws depending on your specific situation at the time of your death. A partner who is not your legal spouse may also be denied the right to your property.

For example, let’s say you have been living with your partner in Ohio since November 1991 and you view your partner as your spouse. However, you and your partner have never obtained a marriage certificate; therefore, Ohio does not consider you to be married regardless of what you and your partner may have intended. Under Ohio’s intestate laws, if you die without a will, your partner will not be eligible to inherit from your estate because you are not legally married.

Therefore, for unmarried couples, it is extremely important that you discuss your estate plan and you take the necessary steps to ensure that your wishes are carried out after your death. If you desire to leave all of your property to your unmarried partner, you must execute a valid will stating this desire in order for your partner to inherit from your estate. A valid will is the only way you can ensure that your unmarried partner will inherit from your estate. However, estate planning goes far beyond simply executing a will.

Estate Planning Tips for Unmarried Couples

A will is the first and possibly the most important estate planning document an unmarried couple can have in their possession. In addition to executing a will, unmarried couples should also consider the following things:

Beneficiaries – One way to provide for an unmarried partner is to name this person as your beneficiary on life insurance policies, retirement accounts, pensions, and other assets that pass directly to a beneficiary rather than through your estate. Because some retirement and pension accounts may have different rules regarding beneficiaries, consult with an estate planning attorney before changing your beneficiaries.

Jointly Titled Property – Unmarried couples must be careful to protect each other with regard to jointly owned assets. For example, if your home is titled only in your name and you die without a will, your heirs can evict your partner from your home. In order to prevent this from happening, you may want to consider titling the property in both names. However, there could be other financial implications that you may want to consider; therefore, it is best to consult with an estate planning attorney prior to making any decisions regarding jointly titled property. You can accomplish the same goal with a legally executed will.

Healthcare Power of Attorney – Even though you may have lived with your partner for decades, your family could prevent your partner from making medical decisions for you if you are unable to do so yourself. A healthcare power of attorney gives your partner the right to make medical decisions on your behalf in the event you become incapacitated for any reason.

General Durable Power of Attorney – A general durable power of attorney allows your partner to make financial transactions in your name even in the event you become incapacitated. Your POA can buy and sell property, open and close financial accounts, enter contracts, settle debts, borrow money, and perform any other financial transaction in your name that you could legally do yourself. This can be important if you were to be incapacitated and your partner needed to make financial decisions for you. Without the POA, your partner would be required to petition the court to become your conservator—something your family could contest.

Contact an Experienced Estate Planning Attorney

For unmarried couples, estate planning is essential in order to ensure each partner is protected in the event one partner dies or becomes incapacitated. The estate planning attorneys of Lovett & Lovett Co., LPA have helped couples prepare for these situations by making sure they have all of the essential estate planning documents in place before that time comes.

Dealing with the death or illness of a loved one is difficult and painful. You should not need to deal with a difficult legal battle with family members at the same time. Our attorneys will guide you and your partner through the process of deciding how you wish your estate to be handled. We will then prepare the documents required to ensure your wishes are honored and your partner is protected.

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