How to Plan Your Estate as a Cohabitating Couple

Estate planning can seem like a long, uphill battle to a land that is optimistically distant.  No one likes to think about what happens after they’re gone, but this thought process can be the difference between recovery and devastation for your loved ones.  It’s critical to ensure that you have taken the proper steps to put your affairs in order so that your spouse and children will be taken care of.  This task can be even more critical for the growing number of couples choosing cohabitation over marriage.  These couples lack many of the legal rights that aid married couples in their estate planning.  The growing numbers of the adults choosing to cohabitate rather than marry, either heterosexual or same-sex, need to take extra care in planning their estate to ensure that all of the I’s are dotted and T’s are crossed.


Estate planning is a critical step in everyone’s lives, no matter their marital status, but there is nothing more disheartening that thinking of leaving your loved ones with nothing.


The main concern in estate planning for all couples, either married or unmarried, is to ensure that the right people are getting the right things.  This means creating a will that outlines where and how your assets will be distributed after your death.  Those wills need to be written early and evaluated often, and can be changed at any point by either party if they so choose.  When it comes to these wills there are a few extra things that unmarried couples need to take into consideration to ensure that they are legally protected and organized in a way that gives them the rights that married couples have.

1.       Inability to “Take Against the Will”-  Ensuring that both of the individuals involved in an unmarried partnership are on the same page in terms of the asset distribution in the wills is increasingly critical because they don’t have the ability to “take against the will” that married couples have.  This right gives the surviving spouse the ability to take a portion of the deceased spouse’s property instead of the amount that they would receive through the will.  This amount is usually anywhere between one-third to one-half of the total estate and if it is taken, its considered “taking against the will.”  Since unmarried couples aren’t given this right, it’s important that the amount given to the surviving partner is suitable to both involved.

2.       Lack of Intestacy Rights- The law of intestacy, also called the law of descent and distribution, acts as something of a failsafe against the lack of an official will.  This law dictates who is entitled to the property from the estate of the deceased if it hasn’t been outlined in a will by the individual.  Normally the assets are distributed to the spouse, followed by children and grandchildren.  This law is aimed at settling problems that arise when a will isn’t present, but it can cause problems for unmarried couples, as the surviving partner can find themselves left with nothing.  This is why it’s incredibly important for these couples to a) create a will and b)keep it in a safe place that both people are privy to.  If these wills are lost or misplaced, the partner has no legal claim to estate.

3.       Medical Care Rights-  Many times, in a medical situation many difficult decisions that cannot be made by the individual, if they are incapacitated for example, are determined by the spouse.  In the case of an unmarried couple, the partner has absolutely no say in any of these decisions.  In some cases the partner could actually be barred from the room because they don’t have any legal family ties to the individual.  Because of situations like these, it’s important to not only plan for what happens after death, but also to plan for events that occur during their lives.  The designation of a medical care representative can give unmarried partners rights relating to the medical care of each other.  This appointment can be made through power of attorney as well. No matter how it is done, it’s important for these couples to establish the necessary rights that they lack because of their unmarried status.

4.       Common Law and Civil Unions-  In the case that partners either engage in a civil union or present themselves as a married couple and can be considered as a common law marriage, some of the laws and rights surrounding inheritance and medical decisions can change.  These partnerships depend on the laws of each individual state.  There are only eleven states, including D.C., that recognize common law marriages, and the rights of those partnerships have an incredible amount of variation between them.  It’s important for couples to understand the legal climate of the state in which they live and how they need to plan in order to protect their rights and their assets.

Estate planning is a critical step in everyone’s lives, no matter their marital status, but there is nothing more disheartening that thinking of leaving your loved ones with nothing.  As society shifts and the number of unmarried, long-term cohabitating couples continues to rise, the laws regarding the rights of those couples may eventually follow suit, but until then it’s important to make sure they cover all of the bases.

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