Rights To Personal Property and Real Property When Your Partner Dies
Unmarried couples don't generally have legal rights to their partner's property in the way that married couples do. At the death of a spouse, the surviving spouse will likely inherit property under a will or the state intestate laws.
There are no similar legal designations for an unmarried couple when one partner dies. Whether it's a vacation home or a pet dog, unmarried couples who desire to provide property to one another at life's end need to take affirmative action to accomplish a property transfer on death.
Real property is real estate such as the following:
Personal property includes items and assets such as the following:
- Cars and other motor vehicles
- Bank and investment accounts
- Retirement accounts and pensions
- Insurance policies
- Appliances and electronic devices
Generally, an unmarried live-in partner won't be entitled to any of the other partner's property if they split up or one partner dies.
So, how does an unmarried couple legally express an intent to give property to each other at death? If they do not intend to marry, they should consider taking any of the following steps:
- Expressly agree to own their property jointly and put the agreement in writing
- Review real property deeds, bank accounts, car and boat titles and re-title in both parties' names unless they desire to remain these items as separate property
- Designate each other as beneficiaries of their life insurance policies
- Execute a valid will with a bequest of agreed property to their partner
- Determine if they are in a state-recognized common law marriage and what impact that may have on property distribution
- Register in their state as a domestic partnership or civil union
All these steps can be discussed with a family or estate planning attorney early on in a serious relationship. Oftentimes, unmarried couples will consider seeking legal advice if they decide to cohabitate.
Options For Buying Property With My Partner
If an unmarried couple owns the property as tenants-in-common, each couple will have a share equal to the amount they contributed. For example, if partner A provides one-third of the cost of the property, then partner A will own a one-third share of the property.
You should note that you will only retain your share of the property if your partner dies. Your partner's share will be part of their estate and distributed according to the state intestacy laws or your partner's will.
If there is no will, the decedent's estate is distributed under the state intestate succession rules. The assets and property will go through the probate court process. Most likely, other blood family members of your deceased partner will inherit. Estate planning is essential for the surviving partner. The rights of an unmarried partner are not protected unless the deceased's estate lists them as beneficiaries.
Unlike tenants-in-common, joint tenancy will allow you to get all of the property in the event of the other tenant's death.
The surviving partner automatically takes the other's share of the property if the property:
- Is titled to both on the deed, and
- Is held as a joint tenancy with the right of survivorship
Again, unlike a tenancy in common, you and your partner will have equal shares of the property regardless of your initial contribution. Joint tenancy with the right of survivorship also allows the surviving partner to bypass the probate process and directly assume ownership of the property without court action.
Please read our article on the differences between joint tenancy and tenancy in common to learn more.
Rights if a Partner Dies and the Property Is Under Their Name
Your rights will depend on the specifics of your case. If your partner designated you as their Power of Attorney, you may act during their lifetime to sell or dispose of property. Normally, you would only take such action if your partner was incapacitated or unable to act. However, a Power of Attorney terminates at the death of its subject.
Generally, you may keep the property if your partner left it to you in a last will and testament. Their will needs to designate you as a beneficiary. Distribution of real property may depend on the jurisdiction where the real estate is located. A will can also dispose of interest in real property or personal property by placing such items in a living trust. Your partner can also name you as a trust beneficiary.
Sometimes when a partner dies, they desire that their estate property benefit their surviving minor children. In such a situation, the partner may designate their surviving partner a trustee or personal representative who can oversee the trust funds until the children come of age.
Common Law Marriage Basics
The term "common law marriage" refers to couples who never formally married but whose actions merit legal acknowledgment of the relationship as a marriage. State law may recognize you as being in a common law marriage if you:
- Act and claim to be a married couple,
- Intend to get married, and
- Live together for a specified time
Most states have abolished common law marriage. The states that still recognize common law marriage are:
- New Hampshire (for inheritance purposes only)
- South Carolina
Some states only recognize common law marriages that occurred before the date they were abolished by that state. These states include:
If you are in such a situation and your common-law spouse dies, you may be able to claim inheritance depending on the laws in your state.
A Lawyer Can Help With Your Property Rights Problems
A loved one passing is a complex and difficult time under the best circumstances. But a deceased partner you were not married to may complicate some property matters and make a difficult time even more stressful.
A plan to protect your property is crucial, especially for unmarried couples. State laws may vary. You want to make sure you understand how the law will apply to your situation.
If you need help retaining your property rights or want to know more about your legal rights, you should speak to a family law attorney with experience in estate planning. They can provide legal advice and appropriate options for you and your partner as you plan ahead.
Can I Solve This on My Own or Do I Need an Attorney?
- You may want to consider creating powers of attorney or prenup agreements
- Getting an attorney’s advice is a good idea if there are children or substantial property involved
- An attorney can help you responsibly enter and exit cohabitation
Get tailored advice about property, finances, and child custody when living together. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Living with a partner is an ideal time to create or change your estate planning forms. Would you like to add your partner to your will? Also, consider creating a power of attorney so your partner can access your financial accounts and bills. A health care directive is necessary if you want your partner to make your medical decisions if you ever become incapacitated.