Wills and Durable Powers of Attorney for Unmarried Couples

Unmarried couples living together often wish to share property ownership and make crucial life decisions together. There are several methods for sharing property rights that are recognized by the law, including joint tenancies, cohabitation agreements, and wills. If couples want their life decisions to have legal validity, particularly decisions regarding medical treatment and finances, they should create what is known as the durable power of attorney.

The following is a discussion of wills and durable powers of attorney for unmarried couples, and how they can benefit you and your family.

Unmarried Couples and Wills

A will is a legal document that details what an individual would like done with their property and assets after death. If you have property you'd like your partner to receive after your death, you need to describe it in your will and indicate your wish. Otherwise, if you don’t have a will to detail your wishes, your property will pass according to what are called intestate succession laws.

In most states, intestate succession statutes automatically distribute your property to your closest family members, i.e. your spouse, children, parents, etc. Without a will, your cohabitant won’t receive any of your estate unless they're successful in arguing that 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.

However, if you and your cohabitant 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 give unmarried partners the ability to share the rights and responsibilities associated with the shared property during their lifetimes. Then, upon the death of one joint tenant, title to the property automatically passes to the other, without the need to go through the formal probate process a will requires. 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 make decisions on your behalf, particularly decisions that may have a legal effect.

If you want your unmarried partner to be make such decisions in the event you become incapacitated and unable to make decisions for yourself, then you'll have to make those legal powers "durable." If you don't explicitly make the power of attorney durable, they will end if you become incapacitated and your unmarried partner may have to go to court to ask the judge to continue managing your affairs.

For Finances

There are generally two types of durable power of attorney, but this can vary depending upon the state you reside in. The first type, called the durable financial power of attorney, applies only to financial decisions. If you grant someone the durable financial power of attorney over your affairs, they'll be able to manage your finances when you become unable to do so and must always act in your best interests.

For Health Care

While state regulations vary, the durable power of attorney for health care, otherwise known as a "medical directive," allows you to name someone to direct your medical care if you become incapacitated.

When creating a medical directive, you make what is called a health care declaration, or medical directive. The health care declaration sets out how you should 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 regarding quality of life and end of life treatments.

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

• Make medical decisions on your behalf, if you have not already made specific instructions regarding 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; and
• Have visitation rights.

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

Learn About Wills and Durable Powers of Attorney: Talk to an Attorney

While property succession and other matters typically pass from one family member to another after one dies, 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. Learn more by speaking with an experienced family law attorney near you.