Just about every adult needs an estate plan, but few need one more than unmarried partners. Many people assume estate planning needs to be a priority only for those who are wealthy or have young children. Those are certainly important reasons to create an estate plan, but they are far from the only ones. The essence of estate planning is exercising control over your future, including where your assets will end up. Unmarried partners typically need to be even more intentional about exercising that control than most people.
In Michigan, as in other states, the law provides a “backup plan” of sorts for people who do not have an estate plan. This is the law of intestacy. Intestacy laws are intended to approximate what most people would have done with their assets had they created an estate plan. For example, these laws tend to favor spouses and children, with parents, siblings, or more distant relatives taking from the estate if there are no surviving relatives with greater priority under the law.
Outcomes under intestacy laws are usually okay, if not ideal, when a couple is married. (It’s always better to have an estate plan; as a series of popular TV commercial observes, “Just okay is not okay.”) But outcomes under intestacy can be disastrous when a couple is not married. The law assumes that if you are not married, the people to whom you want to leave your assets are your closest biological relatives, and that may be far from true. Your committed life partner would be shut out, not only from inheriting, but from making important decisions about your medical care and finances if you became incapacitated. The only solution? An estate plan.
Three Reasons Unmarried Couples Need an Estate Plan
Both same-sex and opposite-sex unmarried couples who are committed to each other need estate plans. Here are three reasons why.
You Have a Child.
If you and your partner are raising a child together, especially if one of you is not the legal parent of the child, you absolutely must have an estate plan. Otherwise, a scenario like this could unfold: you and your partner have a child together which is the biological and legal child of your partner. You have acted as this child’s other parent as long as she can remember, and her other biological parent is not a part of her life. If your partner dies suddenly, you may have no legal right to your child. Traumatized by the sudden loss of one parent, she could be taken away from the only other parent she knows. If your partner had a will naming you as your child’s legal guardian in the event of your partner’s death, this outcome could be easily avoided.
Even if you and your unmarried partner are both legal parents of your child, you need a will to name a legal guardian should something happen to both of you. The bottom line is that all parents, straight or gay, single or married, should have a will that names a guardian for their minor child or children.
You Want Your Partner to Inherit From You.
Unmarried partners, regardless of the strength or duration of their relationship, have no legal right to inherit from one another absent an estate plan. If you have a good relationship with your partner’s biological family, you could hope that they would do the right thing and at least share your partner’s estate with you. But why take this risk when, with a little planning, you and your partner can specify exactly what you would want to have happen in the event of a death? And if you have a strained relationship, or worse with your partner’s family, having an estate plan is even more important.
If your partner has children from a previous relationship, or you do, understand that those children will be legally entitled to much or all of the estate if one of their parents dies without an estate plan. An estate plan allows you to plan for the security of both your children and your partner in the event of your death.
You Want Your Partner to Make Decisions for You if You Can’t.
Many people think estate planning is about what happens after you die, but in fact, your estate plan may be important while you are still alive. Who has the right to make medical decisions for you if you are incapacitated by a sudden illness (like stroke) or an accident? Who has authority to manage your financial affairs if you are alive, but unable to conduct your own business?
If you do not have a health care directive or durable financial power of attorney in place, your partner could be shut out of the decision-making process. And if your partner is the one who is incapacitated, without those documents, you could be the one who will be powerless to act in accordance with your partner’s wishes.
Fortunately, any number of nightmare scenarios can be avoided with a little bit of advance planning. Sit down with your partner and discuss the things that are important to you. It’s not essential that you know exactly what estate planning tools you need to put in place, just what you are trying to achieve. Then you can sit down with an experienced Michigan estate planning attorney and explore the best way to achieve the goals you have identified.
We invite you to contact our law office to schedule a consultation to talk about your estate planning needs.