Marjorie (66), a widow, and Stan (67), a divorcee, have lived together for six years. A decade before, Marjorie watched her husband suffer from Frontotemporal Dementia, which caused him to be violent towards her, until he entered a nursing home and died three years later. Stan also had a difficult marriage and an even tougher divorce, which drained him both emotionally and financially. Both Stan and Marjorie have a bad taste in their mouths about marriage and vow to never get married again. They are both overjoyed, however, to have found love with each other later in life, are in a healthy relationship, and enjoy things just the way they are.
Similar to Marjorie and Stan, living together has a lot of appeal for seniors and seems to be on the rise. According to the U.S. Census Bureau, the number of unmarried couples who are 50+ increased 75% between 2007 and 2016. A likely reason for this is that many have experienced at least one difficult divorce, so they’re wary about remarrying and facing potential legal entanglements once again if things don’t work out.
Living together may seem like a simple arrangement, but it is actually quite complex, especially when it comes to estate planning. Unmarried couples — straight or gay — can face a variety of issues when it comes to estate planning, because estate planning laws are not as favorable for unmarried couples, but that can be fixed with proper planning in place. The following are some issues to consider for those who are cohabitating and what can be done to solve them:
• Medical Emergencies and End-of-Life Decisions: If Marjorie, from our example, has a medical emergency or becomes incapacitated, and if no incapacity planning documents are in place, Stan has no legal right to be given information or to make decisions about her care. What if Marjorie doesn’t want any life saving measures and what if she prefers to be cremated when she passes away? How would Stan know her end-of-life wishes and be able to carry them out if there aren’t any legal documents in place?
Solution: The solution to this problem is to have incapacity planning documents in place. As part of doing so, each can name the other in an Advance Medical Directive (also known as a Healthcare Power of Attorney), which allows each of them to legally make decisions if the other is incapacitated. The Advance Medical Directive can also avoid the potential problems of Marjorie not maintaining control over her health care decisions and Stan not being able to carry them out as she wishes, should she become incapacitated.
As part of incapacity planning, unmarried couples also sign HIPAA releases so medical information can be shared with those who are designated. HIPAA is a federal health privacy law that prevents medical facilities and health care professionals from sharing a patient’s medical information with anyone not designated on the person’s HIPAA release form.
• Financial Affairs: Many unmarried couples share expenses and have tightly intertwined finances. As unmarried individuals, however, they typically have no right to access information about the other’s finances. What if Stan or Marjorie, in our example, became incapacitated? Marjorie or Stan will have no power to handle financial affairs for the other. In other words, Marjorie or Stan won’t be able to view bills, execute transactions, make payments, or get simple information about the other. If bills don’t get paid, serious problems can ensue.
Solution: A Financial Power of Attorney can help protect unmarried couples in emergency situations. It’s a legal document drafted by an experienced Estate Planning attorney that grants a designated individual authority to act on a person’s behalf to make financial decisions when that person can no longer make decisions themselves. At a minimum, naming your partner in this document will allow him or her the ability to pay bills, manage real property and other assets, and deal with government agencies on your behalf.
• Disinheriting one another: Unmarried couples who are living together could inadvertently disinherit one another. Here’s how: When you die without a living trust in place, your estate will most likely go through the long, expensive, painful, and public process of probate. And, as your partner is neither your spouse nor a blood relative, your partner would not receive any assets from your estate if you die without a trust. Naming your significant other in a will is better than having nothing, but a will goes through the nightmare of probate just as surely as dying without a will.
While your partner may receive assets held jointly with you or the assets in which you have named your partner as beneficiary, your partner will not receive anything from your trust or probate estate unless you name him or her as a beneficiary.
Solution: To avoid probate altogether, you should seriously consider creating a Revocable Living Trust if you want your partner or other desired beneficiaries to inherit your possessions. A Revocable Living Trust can establish the client’s partner as the trustee if the client becomes incapacitated through illness or accident. The Revocable Living Trust also guarantees privacy because it avoids the court-supervised probate process which is open to the public. Click here to learn more about Revocable Living Trusts, Wills, and the nightmare of probate.
For Those Who are Unmarried and in Committed Relationship
Even though you may have committed to your partner, if you have not taken the legal steps necessary to protect your finances and your emotional health by getting your estate-planning documents in order, you have overlooked a very important aspect of your relationship. If you love yourself and your partner and trust your relationship, plan now to ensure your legal rightsand your peace of mind.
Estate Planning is Important for Everyone
Here at the Farr Law Firm, we have strategies to help everyone plan for themselves and their loved ones, regardless of your marital status and living arrangement. With advance planning, each person can retain the income and assets it has taken a lifetime to accumulate and the peace of mind that they are prepared, should something happen to them or their loved one. If you or your “significant other” or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one needs nursing home care or even if your loved one is already in a nursing home, please contact us as soon as possible to make an appointment for a consultation:
Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435
Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797
About Evan H Farr, CELA, CAP
