Wills and Durable Powers of Attorney for Unmarried Couples

If couples want their life decisions to have legal validity, they should create a durable power of attorney. This is especially important for decisions about medical treatment and finances.

Unmarried couples living together often wish to share property ownership. They may make crucial life decisions together. There are several methods of legally sharing property rights. Some examples include joint tenancies, cohabitation agreements, and wills.

When unmarried couples live together, they must consider a few legal matters. One of these is estate planning, which includes deciding what should happen if one person gets sick or dies. Key parts of estate planning are creating wills and durable powers of attorney (POAs).

The following discusses wills and durable powers of attorney for unmarried couples. Learn how they can benefit you and your family.

Unmarried Couples and Wills

A will is a legal document that details what a person would like done with their property and assets after death. This could be due to a terminal illness or terminal condition.

A living will, also known as an advance directive, is slightly different. It says what kind of medical care a person wants if they can't speak or make decisions for themselves. In a living will, a person can state their health care wishes. This can include whether they want life-sustaining treatment, such as life support, if they are seriously ill.

They can provide a Do Not Resuscitate (DNR) order if they want. The person can also say if they want to make an organ donation. It's important for loved ones and health care providers, like doctors or nursing home staff, to know about these wishes.

If you have property, you'd like your partner to receive after your death, describe it in your will and state your wish. If you don't have a will to detail your wishes, your property will pass according to intestate succession laws. In most states, these laws distribute your property to your closest family members. Generally, this means your spouse, children, or parents.

Without a will, your cohabitant won't receive any of your property unless they show you had a financial or property-sharing arrangement. Such claims are often difficult to prove, particularly with the lack of any formal documents. Drafting a will is generally the best way to ensure your property is passed down according to your wishes.

But if you and your partner are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship instead of a will. Joint tenancies allow unmarried partners to share the rights and responsibilities of the shared property during their lifetimes. When one joint tenant dies, the title to the property passes to the other without the need to go through the formal probate process. There are other benefits to a joint tenancy, such as tax savings, documentation of commitment, and the sharing of debt.

Unmarried Couples and Durable Powers of Attorney

When you create a power of attorney, you have authorized another person to decide on your behalf. A durable power of attorney is very important. This means a person can choose someone they trust, like a partner or friend, to be their attorney-in-fact. They can make decisions about things like financial affairs or medical treatment if the person can't make them themselves.

Suppose you want your unmarried partner to make such decisions if you become incapacitated and unable to make decisions for yourself. In that case, you'll have to make those legal powers "durable." Suppose you don't explicitly make the power of attorney durable. In that case, it will end if you become incapacitated, and your unmarried partner may have to go to court to ask a judge to continue managing your affairs.

For Finances

There are generally two types of durable power of attorney, but this can vary depending on the state in which you live. The first type is the durable financial power of attorney, which applies only to financial decisions.

If you grant someone a durable financial power of attorney, they'll be able to manage your finances when you cannot do so. They must always act in your best interests.

There's also a POA for managing someone's property, like their home and money. This is particularly useful if someone becomes too sick to manage their financial affairs.

For Health Care

While state regulations vary, the durable power of attorney for health care, known as a "medical directive," allows you to name someone to direct your medical care if you become incapacitated. This person is sometimes called a healthcare proxy or healthcare agent. A medical power of attorney is similar but focuses on health care directives. When creating a medical directive, you make a health care declaration or medical directive. The health care declaration sets out how you want to be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want (and don't want) to receive. Life-prolonging treatments like resuscitation are often addressed in a medical directive, as are directions about the quality of life and end-of-life treatments.

Once you've granted a durable power of attorney for medical care, the person you appointed to make decisions on your behalf will be able to:

  • Make medical decisions on your behalf if you have not already made specific instructions about that decision in your medical directive
  • Enforce your health care decisions in court, if necessary
  • Hire and fire doctors and medical workers involved in your treatment
  • Have access to your medical records
  • Have visitation rights
  • Enforce a do not resuscitate (DNR) order

If you'd like your unmarried partner to manage your affairs should you become unable to manage them yourself, you should create both a durable power of attorney for health care and a durable financial power of attorney. If you haven't completed these documents, financial and healthcare decision-making will typically pass to a family member when you become incapacitated.

State laws about this can vary. Talking to a lawyer about your living will and POAs is a good idea. The local bar association can often provide advice. There are also nonprofit organizations that offer help with care planning.

Learn About Wills and Durable Powers of Attorney: Talk to a Lawyer

While property succession and other matters typically pass from one family member to another after we die, that is not the case with unmarried partners. Wills and durable powers of attorney are great ways to avoid confusion and frustration in this respect.

An attorney can help tremendously with these issues. They can advise you on real estate decisions and obtaining a health care power of attorney. Attorneys can also help you create a living will or a living trust. Talking to a legal professional today can help you avoid legal issues in the future.

Learn more by speaking with an experienced family law attorney near you.

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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.

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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.

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