Unmarried Couples: Asset and Property Estate Planning

In record numbers, older Americans are experiencing widowhood or divorce, causing them to form new partnerships. In the United States, the US Census Bureau reports that more than half of all older adults have only been married once, choosing to remain legally single in the future. Without a legally recognized civil union, marriage, or domestic partnership certificate, cohabitation can have unforeseen and unintended consequences.

For instance, your assets are not mutually inheritable without careful estate planning that includes a “living together contract.” This contract type can be specific and, as an example, cover one transaction, such as purchasing a new home. The contract can also encompass every aspect of your property and finances, including asset distribution in the event of incapacitation, death, or breakup.

Many believe they can address domestic decision-making, such as permissions for owning pets, entertaining guests, even including minor tasks like who will do the dishes in a casual contract, but it is unlikely to be enforced by the courts. If you’re an unmarried couple, it is safer to draw up a comprehensive agreement, enforceable by the courts, that will see you through your lives together. However, you won’t want to co-mingle personal and financial clauses in a single contract as it may render the agreement unenforceable, negating the importance of the contract’s financial clauses. 

For estate planning purposes, a comprehensive living together agreement includes all assets and property owned before the relationship and another for any acquisitions during the relationship. The property and asset division is much like a prenuptial agreement. Remember, joint obligations to a mortgage company or a landlord do not create a contractual relationship or entitle you to a property settlement in the event of death or the parting of ways. With non-marital agreements, each partner should also have a valid will for the state in which they live.

A living together contract often includes rules regarding gifts received, living expenses, property purchases, inheritable rights, and a method for dispute resolution that may arise later, typically through mediation. Having a living together agreement in writing can avoid a host of future legal issues and can be developed in the spirit of two fair-minded individuals clarifying the understanding of a partnership.

Many older Americans prefer not to remarry as it can have consequences to social security income, pension benefit awards, alimony (as part of a divorce settlement), tax consequences, and rights of survivorship. A new spouse’s income may disqualify a child for college financial aid or, in the case of a disabled child, impact the eligibility for government assistance programs.

Because many seniors and near seniors live together in non-legally recognized ways, estate planning can create challenges when partners want to provide for the other after their death.

A legally binding living together contract must work in concert with existing plans for already named heirs. A qualified estate planning attorney can draw up this contract and make necessary changes to current estate plans to avoid future legal conflicts. Like all estate planning documents, the regular review of its content to account for major life changes or preferences is crucial. If you plan to make substantive changes, it is best to be open with your partner and any adult children.

Avoid the possibility of personal and family conflict through open communication channels and mutual understanding. A newer, unmarried partner of a beloved parent may provoke suspicion of intent by adult children. Cohabitating is becoming more popular; however, as states adjudicate separations and inheritance, there is much to consider about planning property and asset control. To protect and provide for your partner and your adult children, consult an estate planning attorney about a living together contract in conjunction with your estate plan to ensure your documents reflect your wishes and are legally enforceable.

We hope you found this article helpful. If you have questions or would like to discuss a personal legal matter, contact our office at (949)-418-1083.