Legal Rights of the Unmarried in Probate Issues

Without a will, an unmarried partner has no right to her partner's assets upon his death.

Unmarried couples do not have the same rights and legal recognitions as married couples do. This is especially pronounced in probate issues when one partner has died and his assets are being distributed. If there was not a will or some sort of contractual arrangement, anything that's not jointly owned may not go to the surviving partner but instead may automatically go to the decedent's next of kin. In short, without a will, unmarried partners have almost no rights.

Real Estate

A surviving partner may or may not have the right to a house or other real estate that both partners shared. If the partners were joint owners or tenants of the property, the family of the partner who died may force the sale to get their portion of the house. If the property belonged solely to the surviving partner, he can keep it. If it belonged solely to the partner who died, the surviving partner has no claim on the house.

Disposition of Assets

In most states, when a spouse dies without a will, his assets automatically go to the surviving spouse. That isn't the case with unmarried couples. If a partner dies without a will, his estate will go to his next of kin. The surviving partner has no legal right to the other's estate.

Taxes

Unmarried couples cannot claim the marital deduction on estate taxes, so a surviving partner will have to pay estate taxes on whatever was left to him. Additionally, if the couple held property as joint tenants with rights of survivorship, the surviving partner may still have to pay taxes on that. This is true even with a will.

End of Life Rights

Spouses have the right to make health care and end of life decisions for each other. Without a durable power of attorney that covers health care, unmarried partners do not. You may not even be able to visit your partner if the family does not allow it. You also do not have the authority to make financial decisions for your partner.

Making a Will

Everyone has the right to make a will disposing of their assets and create a power of attorney that gives a partner the ability to make health care decisions. Although a will does not guarantee that an unmarried partner's assets will be distributed as planned, it does make the partner's wishes more likely to be followed.

References

• Retirement Planning Services, Inc.: Estate Planning Issues That Concern Unmarried Couples
• Law on the Web: Cohabitation