Wills and Durable Powers of Attorney for Unmarried Couples

Unmarried, cohabitating partners do not enjoy the same privileges as married couples, yet they have similar estate planning needs. Wills and durable powers of attorney help these couples address those needs. Unmarried couples in long-term relationships need to consider a few legal issues.

Estate planning is especially critical for unmarried partners. In a few states, such as California, a registered domestic partnership gives couples the same inheritance rights as married partners. In other states, domestic partners have no rights to one another’s property after they die. Without the right estate planning documents, the surviving partner could be passed over despite the decedent’s intentions.

Wills, living trusts, and durable powers of attorney can protect you and give you peace of mind if you and your partner don’t plan on marriage.

Unmarried Couples and Wills

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.

The "last will and testament" is a legal document that details what a person would like done with their property and assets after death. In your will, you can list anyone you want as a beneficiary, whether they are blood relatives or not.

A living will, also known as an advance directive, describes the medical care a person wants if they can’t speak or make decisions for themselves. In a living will, a person states their health care wishes. These can include whether they want life-sustaining treatment, such as life support, if they are seriously ill.

A Do Not Resuscitate (DNR) order instructs first responders and other health care providers not to perform CPR or other life-saving measures. DNRs are most often seen in terminally ill and elderly patients who do not want heroic measures taken to save their lives.

Loved ones and health care providers should know your wishes in advance, and you need a written document so your partner can carry them out.

If you have property you’d like your partner to receive after your death, describe it in your will and state your wishes. If you don’t have a will, your property will pass according to intestate succession laws. In most states, these laws distribute your property to your closest family members.

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 heirs receive property according to your wishes.

If you and your partner are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship. 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 and debt sharing.

Unmarried Couples and Durable Powers of Attorney

A power of attorney (POA) gives another person the ability to make legal decisions on your behalf if you are unavailable or incapacitated. The person designated becomes your agent or “attorney-in-fact.” Your agent can make decisions about financial affairs, medical treatment, or sign documents for you, depending on the powers authorized.

If you want your partner to make decisions if you are incapacitated and cannot make medical or financial decisions, you must have a durable power of attorney. A durable POA lets your agent make decisions even when you’re unable to do so.

For Finances

A durable financial power of attorney applies only to financial decisions. When your partner has a durable financial power of attorney, they’ll be able to manage your finances when you cannot do so.

Durable POAs have a fiduciary duty and must always act in their principal’s best interest. You can write the POA so your agent can manage the property or other 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. Some states call this 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. Health care declarations define your requests for emergency care and what you want in case of incapacity.

You can direct which treatments you want (and don’t want) to receive. A medical directive often addresses life-prolonging treatments like resuscitation, as well as directions about 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. It is a good idea to talk to a lawyer about your living will and POAs.

Learn About Wills and Durable Powers of Attorney

Property succession and other matters typically pass from one family member to another after we die. Unmarried partners do not have that protection. Wills and durable powers of attorney are great ways to avoid confusion and frustration in this respect.

You need an attorney’s help with these legal 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 estate planning attorney near you. For help with other legal documents like cohabitation agreements, consider reaching out to a family law attorney.