Unmarried Couples Face Important Decisions When Creating an Estate Plan

Regardless of the fact that you are not legally married, your long-time partner may be the individual that you want to oversee your estate plan when you become incapacitated or pass away. Unfortunately, unmarried spouses do not share the same rights under the law as those that are married. It is important to consider naming your partner to certain roles when creating your estate plan if you want him or her to have these rights.

Not Married to Your Spouse? Consider These Roles in Your Estate Plan

An Agent to Make Health Care Decisions on Your Behalf

An advanced health care directive allows you to give someone instructions about your health care. It also allows you to name someone to make health care decisions on your behalf. This document is an important part of all estate plans because it allows you to plan ahead for end of life care or for situations where you are unable to make decisions on your own. If you want your partner to serve in this role, you have to appoint him or her as an agent under this document. Otherwise, unmarried spouses do not have an automatic legal right to make these choices for each other.

Agent/Attorney-in-Fact

Another document frequently used when creating an estate plan is known as a power of attorney. In this document, you appoint someone to represent you and act on your behalf. The agent, or attorney-in-fact, has the ability to handle any task that you can handle yourself, such as making deposits, paying bills, or selling property. This is a significant responsibility, so you should think carefully before appointing anyone—including your partner—to serve in this role.

Successor Trustee

If you create a living trust as part of your estate plan, you will serve as the trustee when you are alive. Once you pass, the successor takes over. Again, if you do not appoint your partner in the trust instrument to serve as successor trustee, he or she has no legal right to fill this role.

Personal Representative

A will is part of every estate plan, and will certainly be used when you sit down to create yours. The personal representative is the person in charge of carrying out the duties of administering your estate. If your partner is responsible, trustworthy, and generally the person who you believe will most closely follow your wishes for your estate, he or she should be appointed to this role within the document itself.

Guardian

If you have minor children and they do not have another surviving parent, it is vital that you appoint a guardian who will be in charge of taking care of them. Since children are our most precious assets, it is crucial that you think very carefully before naming someone to this role. The person who is closest to your young children may be your partner. If that is the case, you must name him or her guardian under your will when you create your estate plan. Otherwise, a legal fight could occur among your surviving relatives who wish to raise your children in the event you pass away.

Beneficiary

Clearly, the person that you name as beneficiary of the estate plan that you create is very important. This is the individual (or individuals) who will receive your property when you pass. Since unmarried spouses may not have a legal claim on each other’s property, it is important to name him or her as your beneficiary if you want them to receive your assets.

 

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James F. Roberts
Founder and owner of the Law Office of James F. Roberts and Associates, a premiere estate planning law firm