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What Is the Arizona Statute Regarding Unmarried Couples and Estate Planning?

Marriage confers a number of estate planning advantages. Arizona law defines marriage solely as a union between a man and a woman. Like other states, it affords special status to the spouse when a married person suffers mental incapacity or dies. Same-sex couples and unmarried heterosexual couples in Arizona must be diligent in their estate planning to ensure their wishes are carried out.

  1. Retirement Accounts

    • Federal law dictates that a married person’s 401(k) passes to his spouse when he dies. Unless your spouse has signed a waiver of her right to inherit your 401(k), the balance of your retirement account is distributed to her regardless of whether you have named a different beneficiary.

      This is not the case for unmarried couples. If you are not in a legally recognized marriage when you die, your 401(k) and other retirement accounts will be distributed to those you have designated as beneficiaries on your account paperwork. If you do not name a beneficiary, your accounts will become part of your probate estate. Therefore, keeping your beneficiary designations up to date is essential.

    Intestacy

    • Arizona has default provisions, called intestacy law, that govern what happens to your probate property if you die without a will. The purpose of the intestacy law is to attempt to distribute a person’s property in the manner he would have chosen had he made a will. However, the law does not take into account unmarried couples. If you are not married and you die without a will, any probate property you leave behind will most likely go to your children, your parents or your siblings instead of to your partner.

    Incapacity

    • Some unmarried couples have had trouble when one partner becomes mentally incapacitated or is hospitalized with a serious illness or injury. Spouses are normally granted automatic access to visit each other in the hospital and may have an easier time gaining the authority to make decisions for each other, which is not always the case for unnmarried couples, even those in long-term relationships.

      While everyone needs an incapacity plan, this is particularly true for unmarried couples. With a financial power of attorney and advance healthcare directives, you can make clear your wishes for how your financial and healthcare decisions should be managed in the event you become disabled.

    Considerations

    • Everyone, married or not, needs an estate plan that accomplishes his goals. Because Arizona has special default provisions for married couples, unmarried couples should pay special attention to establishing and maintaining an estate that meets their individual needs.

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