Estate Planning for Unmarried Cohabitants
Jan L. Warner & Jan Collins
After moving in together, purchasing a home, and pledging their love -- without a marriage ceremony and against the wishes of their families, Tom and Karen had everything going for them -- that is until Tom was involved in a serious automobile accident. As a result, Tom suffered severe and permanent physical and neurological injuries, injuries that not only affected his ability to communicate, but also rendered him unable to care for himself.
Had Tom and Karen been "married," there would have been no question but that Karen would have been by Tom's side in the hospital, would have helped him through his rehabilitation, and would have been legally responsible for Tom's care and financial affairs after discharge without a so much as a question.
But, because they were not married and the law did not recognize their relationship, Tom's parents, not Karen, were "first in line" to become Tom's legal guardians. As legal guardians, his parents became legally responsible for Tom and control not only his financial affairs and medical treatment decisions, but also who would -- and would not -- visit him in the hospital and where he would live.
While he was still able to make her decisions, Tom could have chosen what medical treatment he wanted -- and didn't want -- and he could have appointed Karen to make medical and financial decisions for him if he were to become unable to do so. Since he did not, it would be almost impossible for Karen to prove to the court what Tom's wishes really were. Unwittingly, Tom forfeited control of his life to the state and its courts, placing quite an unintended burden on his partner.
Today, more than ever, unmarried cohabitants must be attuned to the issues, become informed, and prepare to attempt to avoid what could otherwise be disasterous consequences. If you do not take care of these matters while you can, you will place far greater emotional and financial burdens on your partners and loved ones. And, in the end, the courts may be called upon to make your decisions for you, regardless of what you might have wanted.
Coordinated planning and use of written documents is especially important for unmarried couples. Because they are not considered to be "family," without a health care power of attorney, for example, one partner will have no say in health care decisions of the other -- and may not even be able to visit in the hospital. Because relationships between unmarried couples are not recognized by state inheritance laws, wills are essential to assure that planned distribution of assets are not frustrated. And because they are not considered relatives, without a durable power of attorney, a court-appointed conservator may be appointed to handle the financial decisions of an incompetent partner.
But even the most coordinated planning and the best-drawn documents may be challenged by angry families and frustrated by legal challenges. Bottom line: There are no guarantees. The purpose of this material is to help inform you about your options so you and your partner can be the architects of your future, ask the right questions, and then implement a plan that will help you maintain control over your lives. Because these issues are so important, the laws governing these documents vary from state to state, and there may be tax and other implications, you will be well-advised to seek competent legal counsel who can help you facilitate your plan.
As a "family of affinity," you and your partner have the opportunity to prepare for your future. If you have already done so, it does not hurt to review your plan every year or two to make sure you have not left anything out.
PROTECTING YOUR PROPERTY
POWERS OF ATTORNEY ARE ESSENTIAL PLANNING TOOLS
A power of attorney is a written document by which you give any person over the age of 18 -- called an attorney-in-fact, a proxy, or an agent -- the legal authority to act for you under certain circumstances. All states authorize these documents, and some allow an agent to make both property and medical decisions.
Through a power of attorney, you decide and control how much power to give your agent and under what conditions the power may be exercised. For example, you may give your partner the authority to deal only with one piece of your property or with all of your property. You may give your partner the power to act immediately or only if you become incapacitated.
There are two basic kinds of powers of attorney:
1) A regular power of attorney where your agent's power begins when you sign and ends when you die or become incapacitated. This means that if you become incapacitated, your partner could be in the same position that Karen found herself in -- contesting claims by your blood relatives who are trying to get the court to appoint a guardian or conservator to handle your financial affairs. This is not the type of document you want.
2) A durable power of attorney through which your agent's power begins when you sign, remains in effect even if you become incapacitated, but terminates on your death -- when your will takes over. You will want to consider a durable power of attorney because if you become incapacitated, your partner will be able to take over the financial aspects of your partnership immediately and, unless there is a court challenge by family members, your partner should be spared the expense of legal proceedings.
If you don't want your partner's authority to become effective until you become incapacitated, then you may want to consider a type of durable power of attorney called a "springing durable power of attorney." Here, the authority "springs" into effect when you become unable to act for yourself.
Remember: You can change or cancel a power of attorney at any time after you sign it -- so long as you still have mental capacity and follow with the law of the state where you live.
WITHOUT A WILL, UNINTENDED RESULTS WILL OCCUR
Through a will, you control what happens to your property at your death. Since a will does not become effective until you die, you may change or cancel it at any time after you sign it -- so long as you still have mental capacity and follow the law of the state where you live. Without a will, you forfeit your right to direct where your property goes when you die to the state where you live. This means that since you and your partner are not "related by blood or marriage," he or she will receive nothing. Without a will, unintended results will occur.
A will not only distributes your property in the way you desire when you die, but also names the person you want to administer your estate. You can provide burial instructions, appoint trustees, and depending on how it's prepared, even be able to save your estate from taxes. You and your partner may want to consider the use of reciprocal wills with "no contest" provisions to attempt to discourage later attacks. To do this, property or money is left to one or more blood relatives who are most likely to later attack the will. Should there be an attack, then the devise or bequest is cancelled.
LIVING TRUSTS MAY BE USEFUL
You probably have heard and read about living trusts, sometimes called "loving trusts," as being a way to save lawyers' fees, probate costs, and estate administration expenses. For unmarried couples, however, use of these documents as part of a coordinated plan may not only reduce the potential of challenges by families, but also provide an easier transition should death or disability of a partner occur.
A living trust is a revocable trust -- meaning that you can change or terminate it at any time while you are competent -- that, properly prepared and implemented, can allow you to carry out your wishes -- in both life and death, leave you in charge of your wealth until you die, and avoid probate. Before you choose to use a revocable living trust, however, you should make sure you understand the long-term effects and what it will -- and won't -- do for you and your partner.
Since there are no tax benefits involved if you choose to use a living trust, your estate will still include whatever assets may be transferred into the trust.
PARTNERSHIP BUSINESSES RAISE SPECIAL CONCERNS
If your assets include a business owned and operated by you and your partner, each of you should be concerned about the issue of business continuation and succession -- that is how the business will continue after your death and how to make sure your partner receives it without claim by others. Unfortunately, without planning, should anything happen to you, your partner may find himself or herself with unwanted "new partners" and the businesses may be sold to try to raise cash to pay unexpected estate taxes or as part of a dissolution. By use of irrevocable trusts and limited partnerships, many of these questions may be satisfactorily resolved in flexible ways.
TODAY, YOU MUST TAKE A COORDINATED APPROACH TO PLANNING
Because each situation is different, because as an unmarried couple you have have many issues to consider, and because no one document can solve your problems, you must take a coordinated approach to the planning process.
Today, with the cost of health care and long-term nursing home care reaching astronomical proportions, you and your partner must also plan for potential health care and long-term care situations in addition to the traditional planning we have just described. Without filling in these important pieces of the puzzle, the rest of your planning strategy may be wasted.
PLANNING FOR YOUR HEALTH CARE FUTURE
Although the American Medical Association estimates that 70 percent of us will face the issue of whether to prolong or terminate life support during our lives, comparatively few Americans have signed advance directives.
Just like your right to say how your property will be distributed through your will, you also have the right to make your own healthcare decisions. And, just like not having a will, if you don't make your healthcare wishes known before the need arises, you may forfeit your rights to others who know little, if anything about your desires.
"Advance Healthcare Directives" are a number of documents that you can use to express your wishes about your future medical treatment. These documents do not take effect until you become incapacitated and are unable to make decisions. Until then, you can change or revoke them. Since the law of each state is different, we will talk about the basics of the most common Advance Directives:
THE LIVING WILL
The living will is the best known type of advance directive. A living will permits you to control the use of extraordinary medical treatment that could otherwise be used to fruitlessly prolong your natural process of dying if you are terminally ill or suffer from a permanent condition defined by your state legislature, and are incapable of making decisions for yourself. Although the technical aspects vary from state to state, living wills have some common features: They become effective only in the event of an end-of-life condition where death is expected in "a short time" and the patient is incapable of making healthcare decisions. In most states, two or more physicians must certify the condition before the living will becomes effective.
Although the living will is a big step in the right direction and an important part of making your healthcare wishes known, having a living will does not always mean that you are in control of all of your potential health care decisions.
DURABLE HEALTHCARE POWER OF ATTORNEY
The United States Constitution guarantees you the right to decide what medical treatment you wish to accept or decline. So long as you you are mentally and physically able to communicate your decisions, you remain in control. But what if you are unconscious and cannot communicate your desires? To whom would you want your doctors to turn to make your treatment decisions? Who would you want to visit you in the hospital? If you do not make your wishes known in writing, then your blood relatives, not your partner, will probably make these decisions for you even though they do not know what you may have wanted.
In order to fill in some of the gaps that the living will leaves, many attorneys advocate that, in addition to a living will, you should consider signing a Durable Power of Attorney for Healthcare, also called a Healthcare Power of Attorney.
Some states have specific laws that authorize the appointment of a health care agent, while others rely on court decisions. Where authorized by state law, the durable health care power of attorney can help you and your partner overcome many of the limitations created by living wills. Through a durable health care power of attorney, you can direct that everything possible be done to preserve your life, that nothing be done, or that some procedures be done and others not be done. You can make the document flexible enough to deal with unforeseen developments by giving your agent the authority to act as he or she sees fit, or you can specifically limit your agent's authority to act.
Your most important decision before signing a healthcare power of attorney is choosing the person you want to act as your agent and discuss your intentions with him or her. Your health care agent need not be your partner. After you sign the document, you should give your agent a list of your health care desires, including your feelings about life support and extraordinary life prolonging medical procedures. Then if your agent is later called on to make decisions, he or she will be able to act effectively on your behalf and, hopefully, eliminate partner-family disputes that can occur during these trying
WHERE DO I PUT THESE DOCUMENTS?
After you sign your documents, you should put your will and power of attorney in a safe place -- like your safe deposit box or leave it with your lawyer. It is a good idea for you and your partner to give each other signed copies to keep. And don't forget to tell the person whom you have chosen to become the personal representative of your estate where the document is kept. In some states, a power of attorney must be filed with the records of the clerk of court. Be sure to ask your lawyer about the rules in your state.
Your healthcare documents should also be placed in a safe place, but not a safety deposit box. We suggest that you give your partner, your doctor, and close friends copies of these documents because they will do you no good if the people who will be around you in the hospital don't know they exist. We also suggest that you talk with your doctor to make sure he or she understands your desires and use the opportunity to introduce your partner to this important health care provider.
Since most contests are based upon either undue influence, fraud, or a combination of the two, you may consider trying to head off a potential contest by sending copies of your health care power of attorney, and even your will and power of attorney, to your blood relatives. With these documents in hand and written knowledge of your relationship with your partner before the fact, you may be able to head off or take much of the "sizzle" out of a later claim. And to have proof later that you were not the victim of fraud and undue influence, think about videotaping the signing in the lawyer's office.
The purpose of this material has been to inform you about your options, not to suggest what decisions you should make. These are your privileges and rights. At best, litigation is costly, time-consuming, uncertain, especially in an overburdened judicial system that is ill-prepared to deal with your unique problems and needlessly invites the intervention of public agencies, the media, and self-appointed guardians of the public interest.
We are often unwilling to discuss our wills, our estate plans, and plans for the dying process, even with those closest to us. You should try to address these matters and come to understandings with your partner, your doctors, and, hopefully, your blood relatives. Failure to communicate is the most common reason the courts become involved in what should be personal decisions.
Will forms are available for sale through direct response orders and in bookstores at minimal prices, and living wills and health care power of attorney forms are available at no cost. But because of the importance of the ancillary issues involving unmarried couples and because there are some technicalities to be avoided, a lawyer should help you and your partner prepare your will and your other documents. Seeing a home-made will or health care power of attorney challenged and set aside by the courts because someone failed to dot the "i's" or cross the "t's" is most unfortunate, especially for unmarried couples who have no other options available.
The cost of the planning process and these important documents, when compared to the big picture, is not great, but the protection and the peace of mind these documents afford is priceless. We were pleased to acquaint you with the basics of co-ordinated future planning so you and your partner can take steps to remain in control of your property and your healthcare treatment.
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