By: Marshall Chriswell
Estate planning is important for everyone, but particularly for unmarried couples.
Proper planning can provide effective and efficient disposition of assets consistent with one’s intentions, tax savings and, of course, peace of mind. A good estate plan in Pennsylvania may include a will (and possibly a memorandum distributing tangible personal property), powers of attorney (financial and medical), one or more trusts, investment planning, etc.
Often, I am consulted by married couples who want to make sure that their spouses, and ultimately their children and grandchildren obtain the assets that the clients have worked so hard to accumulate. Planning for married couples is fairly straightforward. Pennsylvania has statutes which specifically protect a surviving spouse’s beneficiary rights to real property, probate estates, etc.
What about unmarried couples (some prefer the term “domestic partners”)? The short answer is that Pennsylvania provides no protection, as a matter of statutory law, for a surviving partner. Of course, some unmarried couples have been together for years or decades, and even have children together. But without proper estate planning, a surviving partner may be left with nothing. Here are five estate-planning tools for unmarried couples to consider:
1. A Valid Pennsylvania Will
In Pennsylvania, if a person does not have a will the estate assets will legally pass to his/her “heirs.” Heirs include a person’s spouse, children, parents, aunts, uncles, and even cousins. A person’s partner is not an heir. The only way to ensure that the assets of one partner are passed to the other is to have a valid Pennsylvania will drafted by an attorney.
A properly drafted will should also include guardianship provisions for minor children. Without such provisions, a court will have to decide who will obtain custody of the children upon the death of one partner. If the child is the biological or adopted child of both partners, then this is usually not a problem. However, if this is not the case, and if the deceased partner’s intentions are not known, a court may award custody to a grandparent, aunt, uncle, sibling, or other person.
2. Powers of Attorney
When a person becomes physically or mentally unable to make decisions for themselves, their finances, or their healthcare, then a person must be appointed to make decisions for them. If the injured/ill person has a financial power of attorney and a healthcare power of attorney, these documents will spell out who should make those decisions.
If a person does not have power of attorney documents, often a court must appoint a “guardian” who will control the person’s finances and make healthcare decisions on their behalf. If the injured/ill person is married, a spouse is the first logical choice for appointment by the court. However, if the couple is unmarried, the court is more likely to appoint a parent, child, sibling, or other blood relative to be the decision maker. You can see how important these documents can be.
3. Deeds to Real Property
When married couples purchase property in joint names, Pennsylvania law recognizes it as “entireties” property, meaning that if one spouse passes away, the other spouse automatically inherits the deceased spouse’s entire interest in the property. However, there is no such protection for unmarried couples. Unmarried couples must be sure that their deed is drafted properly, with ownership being as “joint tenants with the right of survivorship” if they want to ensure that the property passes between partners at death.
4. Beneficiary Designations
Unmarried couples should be particularly careful to make sure the beneficiary designations on life insurance policies and investments (IRA, 401k, mutual funds, etc) are accurate and up to date.
Trust can provide additional protection and flexible planning alternatives to ensure assets are safely passed on to a surviving partner and/or the next generation. If you have significant assets, or you want to ensure that assets are preserved for children and grandchildren, consider asking an attorney about setting up a trust.
Estate planning is a necessity for everyone, but particularly for unmarried couples. Without proper planning, a surviving partner can be left without a home, and may lose other real estate, personal property or cash that both partners worked hard to accumulate.
To discuss planning options, Contact Marshall Chriswell to schedule a consultation.